PO Box 257
Broxbourne, EN10 7YY
Tel: 01992 471568
Email: [email protected]
Web Address: www.solicitorsfortheelderly.com
Response to the Consultation Paper
On
The Draft Code of Practice
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Solicitors for the Elderly is a national organisation of lawyers, such as
solicitors, barristers, and legal executives who are committed to providing and
promoting robust, comprehensive and independent legal advice for older
people, their family and carers. We have about 750 members throughout
England and Wales, who work for many people with compromised capacity.
Many are already receivers and attorneys and will in the future be making
decisions under the Mental Capacity Act 2005.
We are pleased to be given the opportunity to make comments on the draft
Code and recognise the amount of input that has already been given to get it
to its current format. We hope that our comments will improve the workability
of the Code.
Question 1
Does the content of Chapter 1 meet the aims set out in its introduction? If it does
not suit your needs, please explain why.
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The introduction could be shorter as it duplicates in part what has already
been said in the rest of the chapter.
1.1 The word ‘these’ should be removed from the first sentence, as it is not
make sense unless you set out what decisions it relates to.
1.11 The legal status of the Code should be explained as it is uncertain in
the light of R v Ashworth Hospital ex p Munjaz, [2005] UKHL 58, which relates
to the Code of Practice that underpins the Mental Health Act 1983. Is the
Code to be followed unless it is necessary or there are cogent reasons to
depart from it, or is it merely aimed to be a best practice guide, with extensive
scope to steer away from it, provided reasons can be given, even if departing
from it was not necessary?
It would be useful if clarification could be provided as to how often the Code
will be reviewed, if at all, as it will need updating as case law develops.
It is unclear how others who are expected to follow the Code where they are
not under a duty to do so, are to know of the requirement to be aware of its
existence and the effect on them if they do not follow the Code.
1.12 This contains the first mention of the Principles and Best interest
without any cross-reference.
Question 2(a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 2 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
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2.5, bullet point 5- the Act extends the provision which enable people to plan
for ‘possible’ future lack of capacity as not all donors will know they are going
to loose capacity.
2.11, bullet point 3- the Act makes no reference to eccentric only unwise
decisionsand so exceeds what the legislation provides. An unconventional
decision is not necessarily the same as an unwise decision.
2.15- it may be useful at this point to cross-refer to Chapter 3 on assessing
capacity, as there may be real doubts as to whether P has capacity.
2.19- this could be removed as it duplicates aspects of Chapter 3. A simple
cross-reference would be more appropriate.
2.20- reference is made to the term ‘undue influence’, where the act refers to
‘undue pressure’. They are not the same legal concepts. A presumption of
undue influence may arise where there is a relationship of trust and
confidence between the parties and the transaction cannot be explained by
the relationship. There is no such presumption of undue pressure and there
does not need to be a relationship of trust and confidence.
2.21- the word ‘thus’ is not plain English and should be removed.
Question 2.
(b)
How helpful and realistic are the scenarios contained within Chapter 2? If they are
not helpful or realistic, please tell us how they can be improved.
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The example in 2.21 is a very low-grade example, particularly as those who
might find it most useful would be informal carers who would have no reason
to know about or refer to the Code. We would suggest an older person
choosing to live in squalor and feeding birds and other animals, which adds to
the problem would be a good example.
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There should be an additional example relating to a financial decision at 2.26,
for example, a person with a psychiatric condition who wants to go travelling
abroad and needs a large sum of money. There is concern how this can be
achieved without continual financial supervision. If the condition was such that
P might dissipate his funds as a symptom of the mental health problem it may
be that the decision is made to provide the necessary sums in smaller regular
tranches.
Question 3 (a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 3 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
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3.5 - The definition of lack of capacity should make clearer reference to it
being time specific, perhaps by putting the relevant word in italics.
3.27 – The word ‘can’ should be replaced with ‘may be’ in the first sentence
as it is not always the case that people can improve their decision making
capabilities.
It is hard to see how putting in measures to protect P from making
inappropriate decisions fits in with his/her being able to make unwise
decisions. If P has capacity then he can make an unwise decision if he
understands it may be unwise, as he would have needed to balance all the
relevant factors as part of establishing capacity. This should be distinguished
from unwise decisions made as a symptom of incapacity where P has not
been able to balance up the wisdom of the act as part of the decision making
process.
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3.34 – We would suggest that part of the relevant information should be
whether P realises that the decision he/she is making may be unwise. A
person with capacity can make an unwise decision but a person who lacks
capacity may make an unwise decision not realising it is unwise and it may be
a symptom of his incapacity. We would suggest that this should be set out, as
there may be significant litigation on these wisdom cases otherwise.
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3.39 – We suggest that it is more clearly cross-referred to care and treatment
decisions, perhaps by putting these words in italics.
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3.47 – We are concerned that the examples make assumptions of incapacity
based on the person’s condition, which is not consistent with the Act. This
also applies in respect of Paragraph 3.11. Subject to this being amended, the
last word should be replaced by the word ‘advisable’ as there is no absolute
requirement for medical opinion, other than for statutory purposes or where
the court directs.
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3.51 – Reference is made to complex and major decisions requiring involving
different people to assess capacity but this needs to be further explained to be
of use.
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3.55 – Reference to ‘next of kin’ should be removed as there is no legal
definition and it will cause confusion. Details of when disclosure is possible
should be set out rather than just refer to case law, as anyone other than a
lawyer may not be able to easily find this information out. Whenever the Code
refers to case law we would suggest that the case could be contained in an
appendix to the Code, as it may be relevant in many parts of the Code.
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3.64- It is unclear why there is a need to have a summary as not all the
chapters have this and it may cause Code users not to read the main body of
the chapter but only the summaries. If summaries are to be used then there
should be consistency by a summary in each chapter.
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Question 3.
(b)
How helpful and realistic are the scenarios contained within Chapter 3? If they are not
helpful or realistic, please tell us how they can be improved.
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The example at 3.10 is of little practical use and it would be better to identify
those that would fall under the remit of the Act rather than those that would
not, as the example is so clearly not within the remit.
The example at 3.27 fails to consider that capacity is both function and time
specific and from the example it seems that this time specific test can be
decided in advance of a decision being made. This is very practical but needs
clarification, as we are not sure that this was the intention of the Act.
Question 4(a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 4 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
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4.3 and 4.42 wrongly suggest that family members have a right to be
consulted in best interest decisions, as the Act refers to anyone named by P,
or involved in P’s care or an LPA attorney or deputy.
4.26 – The term ‘written statements’ has not been defined in this paragraph
and may not be clear to non- lawyers so reference should be made to paras
4.35-4.37.
4.28 – the example contained in the text could be seen as offensive by some
people and perhaps should be removed.
4.46 – There needs to be further emphasis that the decision maker cannot
trump an appointed attorney or deputy.
It would also be useful to clarify if EPA attorneys should be consulted, as the
legislation makes no specific provision. A professionally appointed EPA
attorney does not have to be consulted and it would appear from the Act could
be trumped by a decision maker under s.5, or a welfare deputy or welfare
attorney. For example, if a welfare attorney were to choose to move the donor
to an expensive care home without consulting the professional EPA attorney,
there could be a practical problem if the professional attorney was of the view
that the donor could not financially sustain living in that care home in the
longer term. It might not be in the donor’s best interest for a move to that
home if at a later date the donor has to move, which could in an older person
bring about premature death. The Professional EPA attorney would only be
able to deal with this by bringing the matter to the Court, which could be
avoided if the EPA attorney had to be consulted. Perhaps this could be dealt
with by way of a scenario.
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Question 4.
(b)
How helpful and realistic are the scenarios contained within Chapter 4? If they are not
helpful or realistic, please tell us how they can be improved.
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4.13 – The scenario should also cover the daughter considering the least
restrictive options, as it may be that the father could be cared for at home.
4.52 – The example, should confirm that the doctor has satisfied himself that
the advance decision is both valid and applicable to the treatment and
circumstances before arriving at his decision.
Chapter 5 (a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 5 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
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5.13 – We are concerned that we are expected to comment on the Code,
which attempts to solve the Bournewood Gap by allowing the Court of
Protection to have power to authorise the deprivation of liberty, without the
benefit of seeing a published Mental Health Bill and its solution. Clarification
should be included as to:
■ What legal aid is available;
■ How cases are to be reviewed by the Court and the professionals involved in
the care- given the Court’s aim to make one off orders;
■ How quickly these cases can be dealt with, as deprivation of liberty will arise
before the application is heard.
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5.16 - We seek clarification how a non compliant patient requiring medical
treatment for a mental disorder, who did not satisfy the criteria for compulsory
detention under the Mental Health Act 1983, could be treated under section 5
of the Act.
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5.27 – the best interest checklist should be refereed to (4.10).
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5.45 – Should cross-refer to Chapter 12 at 12.11. The comments made in
relation to 5.13 apply to this paragraph as well.
Question 5.
(b)
How helpful and realistic are the scenarios contained within Chapter 5? If they are not
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helpful or realistic, please tell us how they can be improved.
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5.41 – The example would not be accurate as we do not believe a
professional would attempt to restrain a patient to take his blood pressure, as
such a situation would be likely to give a false reading as restraint would
increase his blood pressure. Perhaps the example could be about taking
blood instead.
Question 6 (a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 6 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
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We are concerned that very little mention is give to the use of EPAs. Although
such attorneys are not under a duty to have regard to the Code they will still
refer to it.
6.8 – Should also include the statutory requirement that the certificate
provider, in his opinion believes that there is nothing else which would prevent
a Lasting Power of Attorney from being created.
6.12 – Should make clear that the personal welfare LPA can include
healthcare and medical decisions.
6.16 – The sentence needs rewording, and we would suggest it says, ‘ An
LPA which authorises the attorney to make general personal and welfare
decisions also includes the authority to give or refuse consent to medical
treatment or make other healthcare decisions, unless those type of decisions
are specifically excluded by the donor when granting the power.’
6.17 – It should set out what is life-sustaining treatment so that the Code user
understands that not all health care decisions are covered by a general
power.
6.21 – We suggest this includes a statement that financial institutions may
want to see proof of incapacity if such a condition is included to ensure that
the condition has arisen and so the authority is applicable. As there is no one
point in which a person lacks capacity this may mean that the financial
institution seeks evidence of incapacity for every decisions that the attorney
makes under the power. There is also concern that banks and other financial
institutions may refuse to accept registered LPAs, unless recent evidence of
the donor’s capacity can be provided. This would frustrate the operation of the
LPAs.
6.22 - Attorneys, particularly those acting under a financial LPA, will be under
a constant duty to review their authority which conflicts with the general
principles of agency law. This is a particular concern where the power
operates as an ordinary power, as under the usual rules of agency, if the
donor says not to bother him with details of the finances, the Act appears to
impose a requirement to keep reverting back to the donor to seek his
involvement. There are some people, such as those who are very physically
frail who do not want involvement and have made the appointment to
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someone they trust on this basis. Clarification is sought as to how this should
be tackled, which would be enhanced by a case study. There is also concerns
about the practical implications for any attonrey being required to keep
reverting to the donor for every decision. This will result in increased
responsibility for any attorney and more time involement. For professionals
this has costs implications but for lay attorneys, the time implication may
mean that they disclaim the power at a later time unless they are fully aware
of the responsibilities when they take on the role and if they do, some may
simply not be prepared to be an attorney. This does need clarification.
6.24, Bullet point 10 - ‘Making limited gifts….’ should be included.
6.28 - Should make clear that the power cannot extend the scope of section12
to make more extensive gifts.
6.32 – The powers of the attorney to act during the registration period should
be clarified, as under the EPA registration system then there is limited power
to maintain the donor and to do such things as to prevent a loss to his estate.
6.46 – The common law duty to keep accounts should be included.
6.48 - We seek clarification as to whether an attorney assisting an individual
who has appointed discretionary investment managers to make investment
decisions on the basis of cost and efficiency, would need to review and
reorganise matters, despite the additional costs involved. Would express
authority given by the donor in the LPA be sufficient to authorise the attorneys
to enter into such agreements, or continue those already in place?
6.56 - This is misleading, as there is always a duty to keep accounts. The
court may however require those accounts to be produced.
6.64 – The word, ‘destroy’ should be removed and replaced by, ‘cancel’ as
destruction does not necessarily revoke an EPA.
Question 6.
(b)
How helpful and realistic are the scenarios contained within Chapter 6? If they
are not helpful or realistic, please tell us how they can be improved.
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The example at 6.11 seems incomplete.
Question 7 (a)
Having particular regard to the practical situations in which you may apply
it, please consider if Chapter 7 meets the aims set out in its introduction. If
it does not suit your needs, please explain why.
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This section needs to be reworded to ensure that it is in the present tense and
not the future tense as it is at present peppered throughout.
7.1 – The chapter introduction should be amended to read that it applies to all
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users of the Code and not just professional.
7.9 – Should cross-refer to 7.17.
7.26 – Should include when it is advisable to make a gift or create a
settlement on behalf of someone who lacks capacity as this is omitted.
7.28 – 7.32 would be better placed in Chapter 6 where it is of more use, but
with a cross reference in Chapter 6 to look at Chapter 7.
7.52 – the paragraph makes reference to a deputy acting on behalf of the
donor, which is the wrong terminology.
Question 7.
(b)
How helpful and realistic are the scenarios contained within Chapter 7? If they
are not helpful or realistic, please tell us how they can be improved.
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7.11 – the example is of little practical use as the decision is so low grade that
it is doubtful whether any local authority would need to refer to the example
for guidance.
Question 8(a)
Having particular regard to the practical situations in which you may apply
it, please consider if Chapter 8 meets the aims set out in its introduction. If
it does not suit your needs, please explain why.
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8.19 – the date and circumstances of creating the advance decision may be
useful to include in the written record.
8.20 – the age of the witness should ideally be added to ensure they are of
majority age and the relationship to the maker as this may be relevant if there
is a dispute about validity.
Question 8.
(b)
How helpful and realistic are the scenarios contained within Chapter 8? If they
are not helpful or realistic, please tell us how they can be improved.
The examples are useful in this chapter.
Question 9(a)
9
Having particular regard to the practical situations in which you may apply
it, please consider if Chapter 9 meets the aims set out in its introduction. If
it does not suit your needs, please explain why.
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Some of this chapter is written in the future tense and should be in the present
tense.
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9.3 and 9.40- The legislation refers to people who the person has nominated
to be consulted or chosen as an attorney or a person appointed by the court.
This is not the same as a person who is interested in the person’s welfare. If P
has not nominated a person, assumptions are made that those claiming an
interest are people that would be chosen by P if he had capacity. This is
reading more into the Act than allows.
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9.29 – The Code should set out that if urgent arrangements were made for
accommodation without involving an IMCA, one should subsequently be
instructed if the accommodation is to be provided for the prescribed periods
(s.38 (4) and s.39 (5) sets this out as a requirement).
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The legislation does not exclude those people who are subject to an
application to the Court where the appointment of a deputy is pending. They
would qualify for an IMCA. This should be reflected in the Code.
Question 9.
(b)
How helpful and realistic are the scenarios contained within Chapter 9? If they are not
helpful or realistic, please tell us how they can be improved.
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It may be useful to highlight that some self funding people will qualify for an
IMCA as the local authority will be under a duty to arrange residential
accommodation where the need arises irrespective of the resources of P, also
where a deputy, such as the Director of Social Services, is yet to be
appointed.
Question 10(a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 10 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
No comment
Question 10. (b)
10
How helpful and realistic are the scenarios contained within Chapter 10? If they are
not helpful or realistic, please tell us how they can be improved.
No comment
Question 11(a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 11 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
No comment
Question 11. (b)
How helpful and realistic are the scenarios contained within Chapter 11? If they are
not helpful or realistic, please tell us how they can be improved.
No comment
Question 12. (a)
Having particular regard to the practical situations in which you may apply it, please
consider if Chapter 12 meets the aims set out in its introduction. If it does not suit
your needs, please explain why.
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12.9 –Clarification is needed as to what further safeguards apply if the person
is not to be detained under the Mental Health Act 1983. Other than previous
mention of obtaining an order from the Court of Protection this does not afford
the same or similar safeguards that are available under the 1983 Act.
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12.19 – We are concerned that patients unable to consent but compliant may
be given ECT under s.5 of the Mental Capacity Act and as such do not get the
same protection as those who can consent under the Mental Health Act.
There is no requirement under s.5 to get additional opinions as to the
appropriateness of the treatment and provides less safeguards for the patient.
Question 12. (b)
How helpful and realistic are the scenarios contained within Chapter 12? If they are
not helpful or realistic, please tell us how they can be improved.
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It would be useful to have an example as to when it would be appropriate to
apply to the Court of Protection for an order to restrain someone of his or her
liberty.
Question 13 (a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 13 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
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Much of the text is written in the future tense and needs to be amended to the
presence tense.
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3.10 – Clarification is sought as to whether the OPG will investigate abuse of
personal welfare LPAs and how this is to be achieved, such as referring to
Police, Social Services Adult Protection Officers, or the court.
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13.17 –Clarification should be included as to how the OPG will assess risk to
be able to operate in a fair, consistent and transparent way.
Question 13. (b)
How helpful and realistic are the scenarios contained within Chapter 13? If they are
not helpful or realistic, please tell us how they can be improved.
The examples are useful.
Question 14 (a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 14 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
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14.37 – should specifically cross-refer to 7.17 of Chapter 7.
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Question 14. (b)
How helpful and realistic are the scenarios contained within Chapter 14? If they are
not helpful or realistic, please tell us how they can be improved.
No comment
Question 15 (a)
Having particular regard to the practical situations in which you may apply it,
please consider if Chapter 15 meets the aims set out in its introduction. If it does
not suit your needs, please explain why.
No comment
Question 15. (b) How helpful and realistic is the scenario contained within Chapter
15? If it is not helpful or realistic, please tell us how it can be improved.
No comment
Question 16 (a)
How effective is the overall style and format of the Code, (including the contents
page, references and annex)? Will it suit your needs and if not, please explain
why?
We are happy with the style and format and understand that due to the nature of the
Act it cannot be much shorter if it is to be of use.
Question 16. (b) If you have any final general comments, including comments upon
the issues raised within the consultation paper, please include them
here.
No comment
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ACKNOWLEDGEMENT TO THE CONSULTATION DOCUMENT
Full name
Caroline Paula Bielanska
Job title or capacity in which
you are responding to this
consultation exercise
(E.g. member of the public
etc.)
Joint Chair
Date
27th May 2006
Company name/organisation
(if applicable):
Solicitors for the Elderly
Address
PO Box 257
BROXBOURNE
Postcode
If you would like us to
acknowledge receipt of your,
please tick this box
EN10 7YY

Address to which the
acknowledgement should be
sent, if different from above
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