5.2 The principles that should underpin intervention in the affairs of persons with incapacity have been the subject of much debate in jurisdictions where reform has been affected.351 In view of the wide variety of situations that can arise in
348 See par 3.4-3.5 above.
349 See par 3.13-3.19 above.
350 Cf eg Queensland Law Reform Commission Discussion Paper No 38 1992 1-3.
351 English Law Commission Consultation Paper 119 1991 101.
respect of adults with incapacity, opinions differ on the suitability and applicability of some of them. The demarcation between them is moreover not always particularly clear, some overlap and others are to some extent pulling in different directions, reflecting the conflict between self-determination and paternalism, rights and welfare, autonomy and protection.352 Principles that have gained recognition in other systems include the following:353
♦ Best interests354
The best interests approach is basically derived from child-care law and presents a more paternalistic and possibly restrictive approach: the decision taken is that which the decision-maker thinks is best for the person concerned. In some jurisdictions criticism against the paternalistic nature of this principle has been overcome by fleshing it out in requiring that a person’s best interests should be established with reference to specific factors. These factors then incorporate some of the other (more acceptable) principles (eg by requiring that best interests must be ascertained with reference to the wishes of the person concerned).355 Others seem to have retained the principle in essence but refrained from expressly referring to it (eg by requiring that any intervention must
“benefit” the person concerned).356 As indicated above, South African constitutional law experts have expressed the view that the best interests approach – being based on protective, paternalistic and conservative notions - does not fit in with the underlying premise of self-determination
352 Ibid 108.
353 See in general English Law Commission Consultation Paper 119 1991 101-110; Scottish Law Commission Report No 151 1995 19-25; Queensland Law Reform Commission Discussion Paper No 38 1992 1-6 and Report No 49 1996 5-12; Jansen 2000 European Journal of Health Law 333-340.
354 See in general English Law Commission Consultation Paper 119 1991 105-107; Scottish Law Commission Report No 151 1995 20-21.
355 English Law Commission Report No 231 1995 par 1.3; The Lord Chancellor’s Department Report on Making Decisions 1999 (Internet).
356 See eg the Scottish Law Commission’s use of a principle referred to as “benefit to the incapable adult” (Scottish Law Commission Report No 151 1995 20-21). See also par 5.5 below.
and respect for personhood enshrined in the Constitution and is therefore unacceptable.357
♦ Substituted judgment358
The substituted judgment standard prefers the decision that the incapacitated person would have made had he or she been competent to do so. Guidance as to what the person is likely to have decided in a particular situation can be provided by consultations with the person and with his or her family, friends and carers. The principal advantage of this approach is its implicit respect for the autonomy of the individual and it is generally considered preferable to the best interests test. South African constitutional law experts agree with this.359 The substituted judgment approach is however not appropriate in every situation: it would be difficult or impossible to apply in the case of someone who has never had capacity (eg in the case of a person with a severe intellectual disability).
Significant decisions in such a person’s life will invariably have been taken by others and any choices made by him or her will have been from a very restricted range of options and it would thus be difficult to draw meaningful conclusions about the views or values such person would have had if of full capacity. Any decision will therefore involve a process of pure speculation, or will inevitably be influenced by the decision- maker’s view of what will be best for the person. In the latter instance the distinction between the best interests and the substituted judgment standards might become “little more than a matter of language”.360 The substituted judgment test is more appropriate in respect of someone who once had capacity. However, even in this case it might be problematic, for instance if the person with incapacity was throughout his or her earlier life
357 See par 3.18 above. Note that these remarks were made with reference to intervention in the affairs of physically disabled persons (who would fall in the category of persons requiring intervention in their affairs for reasons other than mental illness).
358 See in general English Law Commission Consultation Paper 119 1991 105-108; Queensland Law Reform Commission Discussion Paper No 38 3; Heaton in Boberg’s Law of Persons and the Family 137-138; Cockrell in Bill of Rights Compendium 3E-34.
359 See par 3.18 above. Note that this preference has bearing on the situation of persons with physical disabilities (who would fall in the category of persons requiring intervention in their affairs for reasons other than mental illness).
360 English Law Commission Consultation Paper 119 107.
a notoriously bad judge of certain matters. Allowing some degree of
“censorship” by those applying the test, or introducing an element of reasonableness in such a situation detracts from the very purpose behind adopting this standard and in practice the outcome would probably not be much different if the best interests standard was applied.361 Some argue however that even if this were the case, emphasis on the substituted judgment standard would at least be symbolic of the respect for human individuality - which might have a value greater than its practical effect.362 Others argue that to overcome the limitations of the substitute judgment standard, it could be replaced with the principle of “least restrictive intervention” in those cases where its application is impossible.363
♦ Normalisation364
This standard has been expressed in a variety of ways and is also referred to as maximum preservation of capacity or encouragement of self-reliance. It follows from the fact that different degrees of incapacity may exist and that incapacity may vary from time to time. It implies in particular that a measure of protection should not result in an automatic, complete removal of legal capacity and recognises that people who have a severe mental or intellectual disability may still have ways of communicating their preferences on matters within their competence.
Basically it aims to treat incapacitated persons as much like other people as possible and encouraging them, as far as is possible, to make decisions for themselves in using their existing skills and in developing new skills. In doing so it emphasises the autonomy of the person with incapacity. Note that this requirement cannot be made absolute as it would be unreasonable to require substitute decision-makers to encourage adults with rapidly deteriorating capacity to acquire new skills;
and impracticable for those with virtually no capacity to exercise existing
361 Ibid 107-108.
362 Ibid 108.
363 Queensland Law Reform Commission Discussion Paper No 38 1992 5. See further down in this paragraph for information on the “least restrictive intervention” approach.
364 See in general English Law Commission Consultation Paper 119 1991 102-103; Queensland Law Reform Commission Discussion Paper No 38 3; Scottish Law Commission Report No 151 1995 22; Jansen 2000 European Journal of Health Law 336.
skills. Some persons moreover grant enduring powers of attorney in order to be relieved of the burden of managing their affairs and would not welcome being encouraged to exercise their existing skills.
♦ Presumption of competence365
This principle requires that the questions whether and to what extent intervention is necessary in the decision-making process of a person with incapacity, should be approached on the basis that the person is capable of making his or her own decisions until the contrary is proved. It implies that although a person may be categorised for certain purposes, this should not be used as criterion to allow intervention. The standard of proof required would normally be the balance of probabilities. Some argue however, that in view of the drastic consequences of an adverse finding, the criminal standard of proof beyond reasonable doubt would be more appropriate.366 It should be noted that the presumption of competence can only operate alongside a clear system for determining incapacity.367
♦ Least restrictive intervention having regard to the purpose of the intervention368
This principle is also known as that of necessity and subsidiarity369 - considered by certain experts370 to be one of the key principles that should underpin intervention in the affairs of persons with incapacity. It implies that where a person requires assistance to make decisions it should be done in such a way as to cause the least restriction of the
365 See in general English Law Commission Consultation Paper 119 1991 103-104; Queensland Law Reform Commission Discussion Paper No 38 1992 3.
366 English Law Commission Consultation Paper 119 1991 104.
367 Ibid.
368 See in general English Law Commission Consultation Paper 119 1991 104; Queensland Law Reform Commission Discussion Paper No 38 1992 4; Scottish Law Commission Report No 151 21-22; Jansen 2000 European Journal of Health Law 335. Note that in some jurisdictions this principle is being formulated as the “minimum necessary” intervention. Those who favour “least restrictive” intervention argue that the latter is preferable as it focuses on the practical results of an intervention (Scottish Law Commission Report No 151 1995 21).
369 Cf Recommendation No R (99) 4 of the Committee of Ministers of the Council of Europe to Member States on Principles Concerning the Legal Protection of Incapable Adults, 1999 (Jansen 2000 European Journal of Health Law 335).
370 Jansen 2000 European Journal of Health Law 335.
rights of that person while at the same time providing adequate protection. In practice this approach would mean that assistance should be provided on an “as needs” basis only; that in appropriate situations it should take the form of support rather than intervention; and wherever possible the views of the person concerned should be sought and taken into account in determining whether intervention is necessary. In some jurisdictions this has led to a preference for informality rather than compulsory powers. (In recommendations by the Council of Europe, for instance, “subsidiarity” expressly refers to the requirement that a response by means of legal measures should be subsidiary to a response by means of the use of informal arrangements or the provision of assistance).371 In others it signified the development of concepts of limited authority over persons with incapacity that is tailored to meet the particular needs of the individual concerned.372 It is significant to note that often this principle incorporates the substitute judgment principle (i e decisions by a substitute decision-maker should be based on what the person concerned would have decided had he or she been competent to do so).373
♦ Proportionality374
This principle requires that where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned i e it should be tailored to the individual circumstances of the case.375 The protective measure should therefore restrict the legal capacity, rights and freedoms of the adult concerned by the minimum which is consistent with achieving the purpose of the intervention. This principle clearly overlaps with the principles of normalisation and of least restrictive intervention discussed above.
371 Recommendation No R (99) of the Committee of Ministers of the Council of Europe to Member States on Principles concerning the Legal Protection of Incapable Adults, 1999, principle 5. See also par 3.5 above.
372 Cf English Law Commission Consultation Paper 119 1991 104; Queensland Law Reform Commission Discussion Paper No 38 1992 4.
373 Ibid.
374 Jansen 2000 European Journal of Health Law 336.
375 See eg Principle 6 of the Council of Europe Recommendations referred to in fn 371 above.
♦ Consultation376
Decisions made on behalf of a person with incapacity can impact significantly on the lives of people who are in existing supportive relationships with that person. Recognition should therefore be given to the importance of preserving such relationships by requiring that these people be consulted. This requirement should however not be so onerous as to be unworkable. Some jurisdictions thus require that the degree of consultation should be appropriate to the scale of the proposed intervention (i e consultation is not required in respect of every minor matter). In jurisdictions where this principle applies the following persons usually have to be consulted:377 the nearest relative and the primary carer of the person; any curator (or similar person appointed by a tribunal or the Court to manage the affairs of the person concerned); any agent under an enduring power of attorney; any person whom the Court or a relevant tribunal has directed to be consulted; and any other person appearing to have an interest in the welfare of the person with incapacity or in the proposed intervention. Note that such consultation is usually required in addition to ascertaining the past and present wishes of the person with incapacity him or herself.
EXAMPLES OF RECENT TRENDS IN OTHER JURISDICTIONS
5.3 Recent trends in other jurisdictions indicate that a set of governing principles is usually included in legislation rather than a single principle. Such principles usually apply throughout substitute decision-making legislation and are not limited to exercising powers in relation to specific types of decisions only.378
376 See in general Queensland Law Reform Commission Discussion Paper No 38 1992 5; Scottish Law Commission Report No 151 1995 22-23.
377 Cf eg sec 1 of the Adults with Incapacity (Scotland) Act 2000.
378 See eg Scottish Law Commission Report No 151 20; English Law Commission Report No 231 1995 par 1.5.
5.4 Although in reform recommended in England a single principle (best interests) is provided for, it is broken down in a number of factors which should be taken into account whenever something has to be done or a decision made on behalf of a person without capacity. The Law Commission believed that although the best interests test and the substituted judgment test are often presented in opposition to each other, they need not be mutually exclusive, and favoured a compromise whereby the best interests test is modified by other (more acceptable) requirements. The following four factors have to be taken into account in ascertaining what may be in a person’s best interests:379
♦ Ascertainable past and present wishes of the person.
♦ The need to permit and encourage the person to participate, or to improve his or her ability to participate, in anything done for and any decision affecting him or her.
♦ If it is practicable and appropriate to consult them, the views as to the person’s wishes of any person named by him or her; any person engaged in caring for or interested in the person’s welfare (eg a spouse, partner in a permanent life partnership, relative or friend); the agent under an enduring power of attorney granted by the person; and any person appointed by the Court to administer the person’s affairs.
♦ Whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of the person’s freedom of action.
Broadly speaking, this approach combines the principles of best interests, substituted judgment, normalisation, least restrictive intervention, and consultation referred to above. The Government, after further consultation, however indicated its intention of adding to the Law Commission’s proposed list the following two factors to be taken into account in determining best interests:
♦ Whether there is a reasonable expectation of the person recovering capacity to make the decision in the reasonably foreseeable future.
♦ The need to be satisfied that the wishes of the person without capacity were not the result of undue influence.
379 English Law Commission Consultation Paper 128 1992 111-13 and Report No 231 1995 par 1.5.
It also suggested that the list of factors should not be applied too rigidly and should not exclude consideration of any relevant factor in a particular case.
5.5 In Scotland legislation provides that there shall be no intervention in the affairs of an adult unless the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention.380 The intervener should have to weigh the intervention against the benefit – the more serious the intervention the greater the benefit that should have to result form it.381 The Commission argued that the best interests approach is too vague; that it does not give enough weight to the views of the adult with incapacity (especially those expressed while still capable); and that it is wrong to equate adults who previously had capacity with children (since the best interests standard was traditionally developed in the context of child law). The Commission therefore avoided referring expressly to
“best interests”.382 In addition to the benefit requirement the following principles (which broadly corresponds with the four factors recommended by the English Law Commission) are provided for:383
♦ Where an intervention is to be made, it shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention.
♦ In determining if and what intervention is to be made, account shall be taken of the present and past wishes and feelings of the person with incapacity; the views of the nearest relative and the primary carer of the person; the views of any guardian or agent acting under an enduring power of attorney who has powers in relation to the proposed intervention; the views of any person whom the Court has directed to be consulted; and the views of any other person appearing to have an interest in the welfare of the adult or in the proposed intervention.
♦ Any person exercising substitute decision-making powers shall encourage the adult to exercise whatever skills he or she has concerning
380 Adults with Incapacity (Scotland) Act 2000 sec 1(2).
381 Scottish Law Commission Report No 151 1995 20-21.
382 Ibid.
383 Adults with Incapacity (Scotland) Act 2000 sec 1(3)-(5).
his or her property, financial affairs or personal welfare, and to develop new skills.
As in England, this approach includes the majority of typical principles referred to above (benefit or best interests, substituted judgment, normalisation, least restrictive intervention, and consultation).
5.6 The Queensland, Australia Law Reform Commission followed a somewhat different approach in recommending an extensive list of principles which must be complied with by every person or body who performs functions or exercise powers under substitute decision-making legislation. These principles include some of the typical principles referred to above (viz providing for a presumption of competence; and requiring encouragement of self-reliance, maximum preservation of capacity, least intrusive intervention and assistance appropriate to the needs of the adult concerned) but also some general human rights and social principles (viz recognition of the rights to equality, dignity, and privacy;
recognising the person with incapacity as a valued member of society;
encouraging such person to participate in community life; and maintaining the person’s cultural and linguistic environment and values).384
5.7 The Council of Europe, in Recommendations dealing specifically with principles underpinning intervention in the affairs of persons with incapacity, also combines some of the typical principles referred to above with human rights principles. Its drafters however indicated that the key principles in the Recommendations are the following: respect for human dignity; necessity and subsidiarity; maximum preservation of capacity; and proportionality.385
384 Queensland Law Reform Commission Report No 49 1996 Vol 1 30-43 and Vol 2 28-31 (clauses 21-31 of the proposed draft legislation).
385 Jansen 2000 European Journal of Health Law 335-336. The Recommendations contain 10 basic principles. The others are: flexibility in legal response; publicity (apparently preservation of the right to privacy); procedural fairness and efficiency; paramountcy of interests and welfare of the person concerned; respect for wishes and feelings of the person concerned; and consultation (Ibid 342- 344).