Best interests- some perspectives
Keith Walsh, solicitor, [email protected]
The Mental Health Act 2001 contains principles which are intended as a guide to the
interpretation of the Act concerning the care or treatment of a person under the Act.
Section 4 of the Act contains the most contentious guiding principle – best interests. Section
4 (1) of the Mental Health Act 2001 states that in making a decision under the Act concerning
the care or treatment of a person (including a decision to make an admission order in relation
to a person), the best interests of the person shall be the principal consideration with due
regard being given to the interests of other persons who may be at risk of serious harm if the
decision is not made. Section 4(2) states that individuals are entitled to notification about
certain decisions and to respond in relation to admission and treatment decisions as far as is
practicable. Section 4(3) states that in all decisions regard must be had to the need to respect
the right of the person to dignity, bodily integrity, privacy and autonomy.
But are best interests always the principal consideration ?
Whelan quotes Eldergill, J.’s view that ‘reading s.4 in light of the general scheme of the Act,
the patient’s best interests are not always first. For example, if a patient constitutes a serious
risk to others and satisfies the legal criteria for detention then this becomes the principal
consideration and the patient’s interests become secondary.’
When a Mental Health Tribunal is reviewing an Admission or Renewal Order, section 18 of
the Act provides ‘it shall review the detention of the person concerned and shall either
(a) if satisfied that the patient is suffering from a mental disorder, and
(i) that the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have
been complied with, or
(ii) if there has been a failure to comply with any such provision, that the failure
does not affect the substance of the order and does not cause an injustice,
affirm the order, or
(b) if not so satisfied, revoke the order and direct that the patient be discharged from the
approved centre concerned.’
It appears on an ordinary reading of section 18 that the principal issues to be considered by
the Mental Health Tribunal in reviewing an Admission or Renewal Order are
•
•
•
whether the patient suffers from a mental disorder or not,
whether there has been a failure of compliance with certain sections of the Act
if there has been a failure of compliance with the sections of the Act, whether the
failure (a) affects the substance of the order and (b) causes an injustice
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In addition section 4(3) of the Act states that in making a decision under the Act concerning
the care or treatment of a person (including a decision to make an admission order in relation
to a person) due regard shall be given to the need to respect the right of the person to dignity,
bodily integrity, privacy and autonomy. Many commentators have stated that there is a
conflict between respect for a person’s dignity, bodily integrity, privacy and autonomy and
taking best interests as a primary consideration.
The Expert Group on the Review of the Mental Health Act 2001 in their report delivered in
December 2014 (and as yet unimplemented) describe the way best interests has been
interpreted and applied by the Irish courts as being at the opposite end of the scale from
autonomy.
How have the Irish Courts interpreted best interests?
As Whelan points out the decisions of the Irish Courts have veered from interpreting best
interests as ‘enhancing the rights of patients under the Act to restating paternalism as it
existed prior to the introduction of the Act’ in 2006. Indeed one of the more gloomy aspects
of conducting a habeas corpus case in the High Court is the recital of case law from the
1950s which was another era in terms of rights of those detained under the Mental Treatment
Act 1945 and in terms of applying any type of rights based approach. Even gloomier for the
applicant and their legal team is the reliance placed on this pre 2006 caselaw by the trial
judge.
The Expert Group stated that while the right of the person to having dignity, bodily integrity,
privacy and autonomy respected was clearly stated in the Act, the fact that the term ‘best
interests’ is listed as a ‘principal consideration’ along with the generally ‘purposive
interpretation’ of the Act had led the Courts over the years to interpret these principles in a
paternalistic manner as was often the position in case law prior to the introduction of the 2001
Act.
Hardiman J. in Supreme Court case of M.D. v Clinical Director of St. Brendan's Hospital
& anor [2007] IESC 37 described the purpose of the Act, and in particular Sections 9 - 18
thereof, as ‘intended to constitute a regime of protection for persons who are involuntarily
detained because they are suffering from a mental disorder’, he went on to state ‘That
purpose will not, in my view, be achieved unless the Act is complied with.’. This emphasis
on compliance with the Act was not necessarily reflected in the subsequent judgements of the
High Court in a variety of cases brought before it in 2007 and subsequent years.
The polar opposite approaches taken by the High Court can be viewed by the different
positions taken by O’Neill J. in two Mental Health Act cases in 2007. In the first M.R. v
Byrne and Flynn [2007] I.E.H.C. 73; [2007] 3 I.R. 211 O’Neill J. stated:
‘Before embarking upon a consideration of the issues which have arisen in this case it is well
to establish in general the correct approach when dealing with legislation of the kind
involved here. It has been said and indeed it is common case that in approaching the
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construction of the Act, the purposive approach is to be adopted, and the following passage
from the judgement of McGuinness J. Gooden v. St. Otteran’s Hospital [2005] 3 I.R. where
she is speaking of the Mental Treatment Act of 1945 and says the following, illustrates the
point;
“I respectfully accept Denham J.’s analysis of the principles of interpretation
as set out in that judgment. In interpreting s. 194, therefore, it would in my
view be right to consider the purpose of the Act of 1945 as a whole. It is a
wide ranging statute dealing with all aspects of provision of treatment for
those suffering from mental illness ranging from the building of mental
hospitals to details of their administration and staffing and to the reception
and care of patients. It is divided into distinct but related parts. Section 194
occurs in the part of the Act which deals with the voluntary patients in mental
hospitals. They cannot however be read entirely in isolation from those parts
of the Act which deal with patients who have been committed to mental
hospitals as a result of Reception Orders. Still less should it be read isolated
from the surrounding sections in the same part and in particular s. 195….”
The same approach is in my view entirely appropriate in respect of the interpretation of the
Act of 2001, which repealed the whole of the Mental Treatment Act of 1945 other than part
VIII and sections 241, 276, 283 and 284. In addition the Act of 2001 also repealed the whole
of the Mental Treatment Act of 1953, the whole of the Mental Treatment (Detention in
Approved Institutions) Act of 1961, the whole of the Mental Treatment Act of 1961 other than
sections 39 and 41. As is apparent from the preamble to the Act, the Act is a piece of
legislation which comprehensively deals with the involuntary admission of persons suffering
from mental disorders to approved centres and establishes the Mental Health Commission
and Mental Health Commission Tribunals and an Inspector of Mental Health Services for the
purposes of the independent review of the involuntary admission of persons to approved
centres. In the case of In Re Philip Clarke [1950] I.R. 235 the former Supreme Court when
considering the constitutionality of s. 165 of the Mental Treatment Act of 1945, in the
judgment of O’Byrne J., delivering the judgment of the court described the general aim the
Act of 1945 as follows:
“The impugned legislation is of a paternal character, clearly intended for the
care and custody of persons suspected to be suffering from mental infirmity
and for the safety and wellbeing of the public generally. The existence of
mental infirmity is too widespread to be overlooked, and was, no doubt
present to the minds of the draftsman when it was proclaimed in Article 40.1
of the Constitution that though, all citizens, as human persons are to be held
equal before the law, the State, may, nevertheless, in its enactments have due
regard to differences of capacity, physical and moral, and social functions. We
do not see how the common good would be promoted or the dignity and
freedom of the individual assured by allowing persons, alleged to be suffering
from such infirmity, to remain at large to the possible danger of themselves
and others. The section is carefully drafted so as to ensure that the person
alleged to be of unsound mind, shall be brought before, and examined by,
responsible medical officers with the least possible delay. This seems to us to
satisfy every reasonable requirement and we have not been satisfied, and do
not consider that the Constitution requires, that there should be a judicial
enquiry or determination before such a person can be placed and detained in
a mental hospital. The section cannot, in our opinion be construed as an
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attack upon the personal rights of the citizen, on the contrary it seems to us to
be designed for the protection of the citizen and for the promotion of the
common good.”
In my opinion having regard to the nature and purpose of the Act of 2001 as expressed in its
preamble and indeed throughout its provisions, it is appropriate that it is regarded in the
same way as the Mental Treatment Act of 1945, as of a paternal character, clearly intended
for the care and custody of persons suffering from mental disorder.
As is plainly obvious there are provisions included in the Act of 2001 which can be regarded
as radical reforms of the Mental Treatment Act, 1945. The principal reform is the
establishment of the Mental Health Commission and Mental Health Tribunals, thus providing
for a quasi-judicial intervention for the purposes of the independent review of detention of
persons in approved centres alleged to be suffering from “mental disorders”.’
O’Neill J. referred to section 4(1) of the Act as being relevant but did not mention section
4(3).
The high point of the rights based approach to best interests could be said to have been
reached later that year in W.Q. v Mental Health Commission [2007] 3 I.R. 755; again
decided by O’Neill J. when he stated ‘In my opinion the best interests of a person suffering
from a mental disorder are secured by a faithful observance of and compliance with the
statutory safeguards put into the 2001 Act by the Oireachtas’. McMenamin J. affirmed this
approach in J.B. v Director of Central Mental Hospital (No.2) [2007] I.E.H.C. 201.
In another case from 2007 PMcG v Medical Director of the Mater Hospital [2007] I.E.H.C.
401, Peart J. on the one hand stated:
‘In the circumstances of this case it was in my view appropriate for the applicant’s solicitor
to form the view that as the provisions of s. 22 of the Act had clearly not been complied with,
the High Court should be asked to enquire into the legality of the applicant’s detention. It is
not for the solicitor appointed to represent the interests of the patient to ignore the failure to
observe the provisions of s. 22 on the basis that she may not have believed that this Court
was likely to order his release. That is a matter within the jurisdiction of this Court to decide.
To fail to bring the matter to Court for such an inquiry on such a basis would lead to a risk
that in some case or cases a patient might remain in unlawful detention without redress,
given in particular the vulnerability of many such patients who may not be in a position to
themselves instruct their appointed legal representative to apply for an order releasing him
or her from detention. Such a situation would tend also to encourage a slack approach to the
observance of the requirements of this legislation and this would be an undesirable situation
to arise in relation to legislation whose very purpose is to put in place a regime of statutory
procedures for the protection of vulnerable persons against involuntary unlawful detention.
The protections put in place are detailed and specific and it is of the utmost importance that
they be observed to the letter, and that no unnecessary shortcuts creep into the way in which
the Act is operated. That is not to say that there could never be a case which the High Court
would consider ought never to have been made. The Court must always retain the discretion
to consider that the defect alleged is of such a trivial and insubstantial nature as to have
always been bound to fail.’
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On the other hand he then goes on to state:
It cannot have been the intention of the Oireachtas when it enacted this piece of legislation
that its provisions would have to be acted upon in such a literal way that the best interests of
the patient would take second place to those best interests. The Act lays down procedures
which protect the patient’s fundamental rights, and it is essential that those protections are
afforded in all cases. But there may be situations where some deviation from the provisions of
the Act will not undermine those protections.’
The leading case in this jurisdiction in the Supreme Court is that of E.H. v St. Vincents
Hospital and Oths. [2009] IESC 46 decided by Kearns J. where he had to consider whether a
person who was a voluntary patient for 12 days but had no capacity to consent to being a
voluntary patient was lawfully detained or not. In finding that the person was lawfully
detained, Kearns J. indicated the basis on which he was interpreting the term ‘voluntary
patient’ as follows:
Any interpretation of the term [voluntary patient] in the Act must be informed by the overall
scheme and paternalistic intent of the legislation as exemplified in particular by the
provisions of sections 4 and 29 of the Act. Such an approach to interpretation in this context
was approved by this Court in the course of a judgment delivered by McGuinness J. in
Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617 when, in relation to s. 194 of the Mental
Treatment Act 1945 she emphasised that a purposive construction of the section was
appropriate, stating at pp. 633 to 634:“In interpreting s. 194, therefore, it would in my view be right to consider the
purpose of the Act of 1945 as a whole....
At first reading the wording of s. 194 appears clear and unambiguous. If,
however, it is interpreted literally as providing an absolute right to physical
release from the hospital and as preventing any use of the machinery of s. 184
or the making of a reception order while the patient is still in the hospital, the
logical result is that the only person for whom a reception order cannot in any
circumstances be made is a voluntary patient who has given notice of
discharge. During the 72 hour period of notice he is inviolate and at the end of
it he must be physically released. This situation would apply even if the patient
in question was so mentally ill as to be a danger either to himself or the
public. That this is the effect of a literal interpretation of s. 194 is candidly
admitted by counsel for the applicant.”
I pause only to state that at least in that case, unlike the present one, counsel appears to have
been willing to consider the impact and likely effect on the patient of an order made directing
release. McGuinness J. then continued:“In In re Philip Clarke [1950] I.R. 235 the former Supreme Court considered
the constitutionality of s. 165 of the Act of 1945. O’Byrne J. who delivered the
judgment of the court, described the general aim of the Act of 1945 at pp. 247
to 248 thus:‘The impugned legislation is of a paternal character, clearly intended for the
care and custody of persons suspected to be suffering from mental infirmity
and for the safety and well-being of the public generally. The existence of
mental infirmity is too widespread to be overlooked, and was, no doubt,
present to the minds of the draftsmen when it was proclaimed in Article 40.1
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of the Constitution that, though all citizens, as human beings are to be held
equal before the law, the State, may, nevertheless, in its enactments, have due
regard to differences of capacity, physical and moral, and of social function.
We do not see how the common good would be promoted or the dignity and
freedom of the individual assured by allowing persons, alleged to be suffering
from such infirmity, to remain at large to the possible danger of themselves
and others’
This passage has been generally accepted as expressing the nature and
purpose of the Act of 1945. The Act provides for the detention of persons who
are mentally ill, both for their own sake and for the sake of the common
good.”
I do not see why any different approach should be adopted in relation to the Mental Health
Act, 2001, nor, having regard to the Convention, do I believe that any different approach is
mandated or required by Article 5 of the European Convention of Human Rights.’
Kearns J. went on to state:
‘These proceedings were initiated and maintained on purely technical and unmeritorious
grounds. It is difficult to see in what way they advanced the interests of the applicant who
patently is in need of psychiatric care. The fact that s. 17 (1) (b) of the Act of 2001 provides
for the assignment by the Commission of a legal representative for a patient following the
making of an admission order or a renewal order should not give rise to an assumption that a
legal challenge to that patient’s detention is warranted unless the best interests of the patient
so demand. Mere technical defects, without more, in a patient’s detention should not give rise
to a rush to court, notably where any such defect can or has been cured – as in the present
case. Only in cases where there had been a gross abuse of power or default of fundamental
requirements would a defect in an earlier period of detention justify release from a later one.’
As Eldergill has pointed out in his commentary on the E.H. judgement – what are ‘technical’
defects ? How would the best interests of a person be served if there were to be unlawfully
detained ? The E.H. judgment has had a chilling effect on subsequent High Court judgments
and emphasized the importance of the pre 2006 caselaw in the interpretation of the Act.
In the case of S.O. v. Adelaide and Meath Hospital of Tallaght, [2013] IEHC 132 Hogan J.
set out the difficulties in interpreting the Act‘The case-law which has followed the enactment of the Mental Health Act 2001 (“the Act of
2001”) has endeavoured to strike a balance between the need to protect rights to personal
liberty, due process and the rule of law on the one hand and the effective protection of the
mentally ill, medical professionals and the patients’ family and friends on the other. It is not
an easy balance to strike. If the courts veer in the direction of the paternalistic protection of
the patient, important safeguards might suffer erosion over time to the point whereby the
effective protection of the rule of law might be compromised. Yet, if on the other hand, the
courts maintain an ultra-zealous attitude to questions of legality and insist on punctilious
adherence to every statutory formality, the might lead to the annulment of otherwise perfectly
sound admission decisions, sometimes perhaps years after the original decision has been
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taken.
The present case may be thought to provide a paradigm example of this dilemma. There is no
doubt at all but that the applicant, Mr. O., suffers from psychiatric illness and is in urgent
need of psychiatric care. Yet the manner in which he came to be involuntarily detained in the
early evening of 8th March, 2013, raises significant questions regarding the operation of the
2001 Act.
He found that the facts in this case ‘represented a “complete failure” to comply with the
requirements of section 10. There was “a default of fundamental requirements.” If a patient
could be admitted by a general practitioner in the absence of any examination this would set
at naught the safeguards deemed to be fundamental by the Oireachtas.’
Hogan J. found himself coerced into finding that there had been a default of fundamental
requirements as set out in the Act and ordered the release of the applicant.
Should section 4(1) re: Best interests remain in the Act ?
In their Report on the Operation of Part 2 of the Mental Health Act 2001 in 2008, the Mental
Health Commission stated that the lack of definition of what constituted best interests was
unfortunate. The Mental Health Commission proposed a code of practice for the Act to deal
with best interests and their application under the Act.
The Expert Group was conscious in conducting their review that, while there have been some
positive changes in general society attitudes over time, people with mental illness still suffer
discrimination and stigmatisation. The Group acknowledged the fundamental importance of
working towards the removal of all elements of stigma in the field of mental health and this
important tenet was a key part of the Group’s thinking in looking at the issue of guiding
principles.
The Expert Group on the Review of the Mental Health Act 2001 advocated a move away
from a paternalistic interpretation of the Act and away from retaining best interests as a
guiding principle in order to comply with the European Convention on Human Rights
(ECHR) and the United Nations Convention on the Rights of Persons with Disabilities
(CRPD). The Expert group emphasized General Comment No 1 of the Committee on the
Rights of Persons with Disabilities (2014) which states at {21} that “the ‘best interests’
principle is not a safeguard which complies with article 12 in relation to adults. The “will and
preferences” paradigm must replace the “best interests” paradigm to ensure that persons with
disabilities enjoy the right to legal capacity on an equal basis with others.”
The Expert Group held that individuals with mental illness and with capacity have the right to
make what others may consider to be unwise decisions.
In place of best interests they proposed a list of guiding principles to reflect the importance of
the person’s right to autonomy. The Expert Group referred to the importance of self7
determination and referred to the presumption of capacity as set out in the Assisted Decision
Making (Capacity) Bill, (as it then was) with the provision of support if required.
The following are the Expert Group’s recommendations in relation to best interests:
1. Insofar as practicable, a rights based approach should be adopted throughout any
revised mental health legislation.
2. The following list of Guiding Principles of equal importance should be specified in
the new law:
a. The enjoyment of the highest attainable standard of mental health, with the person’s
own understanding of his or her mental health being given due respect
b. Autonomy and self determination
c. Dignity (there should be a presumption that the patient is the person best placed to
determine what promotes/compromises his or her own dignity) [the Expert Group
believe that dignity represents the best elements of best interests while avoiding the
paternalistic interpretation]
d. Bodily integrity
e. Least restrictive care.
The Group explained their rationale for point a. as follows: ‘while mental health legislation is
intended to cover interventions that are aimed at achieving the highest attainable level of
mental health for the patient, the Group would reiterate that ‘mental health’ is itself a
contested concept and there is no single agreed source of authority in this area. The Group
would stress that interventions by Mental Health Professionals and others such as the Court
services should take account of the contested nature of mental illness and must, at all times,
give due respect to the person’s own understanding of his or her mental health.’
The Expert Group considered whether the list of guiding principles should be ranked in
hierarchy but decided that the list should not place a greater emphasis on one rather than
another principle. While this permits the maximum flexibility it does not lead to certainty.
The experience in the past 20 years from the family law courts in terms of applying a
checklist of factors to be taken into account under section 16 of the Family Law Act 1995 or
section 20 of the Family Law (Divorce) Act 1996 has result in anything but clarity as to the
weight or importance given to any of the factors in any particular case.
Munby J. in Re: ITW v Z & Ors [2009] EWHC 2525 (Fam) stated when considering the lack
of any hierarchy in applying the best interests checklist under the MCA 2005
‘there may, in the particular case be one or more features or factors which, as Thorpe LJ has
frequently put it, are of “magnetic importance” in influencing or determining the outcome”:
see, for example Crossley v Crossley, at para [15] (contrasting “the peripheral factors in the
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case” with the “factor of magnetic importance”) and White v White where at page 314 he
said “Although there is no ranking of the criteria to be found in the statute, there is as it were
a magnetism that draws the individual case to attach to one, two, or several factors as having
decisive influence on its determination”. Now that was said in the context of section 25 of the
Matrimonial Causes Act 1973 but the principle, as it seems to me, is of more general
application.’
7th April 2017
Keith Walsh Solicitor
[email protected]
Documents and videos from UCC Mental Health Law Conferences are available at
http://www.ucc.ie/law/docs/mentalhealth/conferences/
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Extract from Law Society Practice Note July 2008
CLIENT’S INSTRUCTIONS OR BEST INTERESTS?
Questions will be raised as to whether solicitors representing patients should act in
accordance with the patient’s instructions or whether their role is to act in the patient’s
best interests. (See the Mental Health Commission website at www.mhcirl.ie for relevant
High Court judgments, post-commencement of the Mental Health Act 2001.) Section 4 of
the Mental Health Act 2001 obliges persons making decisions under the act to act in the best
interests of the patient. The solicitor’s role is limited to acting in the client’s best interests in
terms of legal representation. What is in a patient’s best interests is a matter for the
professional judgement of the solicitor, taking into consideration the following points:
1) It is the patient’s views or wishes that should be represented to the tribunal. A solicitor
should act in accordance with the patient’s instructions. However, in taking those
instructions, the solicitor must determine whether or not the patient is capable or not capable
of giving clear instructions.
2) It is recognised that some patients detained under the Mental Health Act 2001 will not
have the mental capacity to give clear instructions to their solicitor.
3) All solicitors have a general duty to act “in the best interests of the client” at all times. This
includes a requirement to give the clients their best advice. In cases coming within the
provisions of the Mental Health Act 2001, this might include a realistic assessment of the
likelihood of the patient being discharged, or advice about possible steps towards discharge,
but the client patient has the right not to accept that advice.
4) In deciding what is in the patient’s best interests, regard should be had to the following:
• The client should be encouraged to participate as fully as possible in the decision-making
process,
• The person’s known past and present wishes and feelings and the facts that he or she would
consider important,
• The views of other people/ professionals whom the solicitor decides are appropriate or
practicable to consult in the preparation of the case, and
• Whether the purpose for which any action or decision with regard to the detention and
treatment of the patient was made can be achieved in a manner less restrictive of that person’s
liberty.
The solicitor should prepare the evidence on behalf of the patient as in any other case,
defending primarily the patient’s liberty and right to treatment in the least restrictive setting.
The solicitor should avoid an overly collaborative approach with the tribunal, leading to too
easy an agreement to detention in the best interests of the patient.
It is acknowledged that there are no hard and fast rules or correct answers to some of the
ethical and other questions raised in representing patients who are detained under the Mental
10
Health Act 2001. However, in general, the solicitor’s role is to act on the patient’s
instructions, advocating the patient’s views and wishes, even if these may be considered
by the solicitor to be bizarre or contrary to the patient’s best interests. It is for the
tribunal to decide, on the basis of the evidence before it, from the patient and from all the
professionals purporting to act in the patient’s best interests, whether the statutory criteria set
out in the 2001 act are met.
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ASSISTED DECISION-MAKING (CAPACITY) ACT 2015
An Act to provide for the reform of the law relating to persons who require or may require
assistance in exercising their decision-making capacity, whether immediately or IN THE FUTURE,
HAVING REGARD, INTER ALIA, TO THE PROTECTIONS AFFORDED BY THE CONVENTION FOR THE
PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS DONE AT ROME ON THE 4TH DAY
OF NOVEMBER 1950 AS IT APPLIES IN THE STATE; to provide for the appointment by such persons of
other persons to assist them in decision-making or to make decisions jointly with such persons; to
provide for the making of applications to the Circuit Court or High Court in respect of such persons,
including seeking the appointment by the Circuit Court of decision-making representatives for such
persons; TO PROVIDE FOR THE MAKING OF ADVANCE HEALTHCARE DIRECTIVES BY PERSONS OF
THEIR WILL AND PREFERENCES CONCERNING MEDICAL TREATMENT DECISIONS SHOULD SUCH A
PERSON SUBSEQUENTLY LACK CAPACITY; TO PROVIDE FOR THE APPOINTMENT IN ADVANCE
HEALTHCARE DIRECTIVES OF DESIGNATED HEALTHCARE REPRESENTATIVES WITH THE POWER TO,
inter alia, ENSURE THAT THE ADVANCE HEALTHCARE DIRECTIVES CONCERNED ARE COMPLIED WITH;
to provide for the appointment and functions of the Director of the Decision Support Service in
respect of persons who require or may shortly require assistance in exercising their decision-making
capacity; to provide for the amendment of the law relating to enduring powers of attorney; to
provide for the ratification by the State of the Convention on the International Protection of Adults;
and to provide for related matters.
PART 2
Principles that Apply before and during Intervention in respect of Relevant Persons
Guiding principles
8. (1) The principles set out in subsections (2) to (10) shall apply for the purposes of an
intervention in respect of a relevant person, and the intervener shall give effect to those
principles accordingly.
(2) It shall be presumed that a relevant person who falls within paragraph (a) of the definition
of “relevant person” in section 2(1) has capacity in respect of the matter concerned unless
the contrary is shown in accordance with the provisions of this Act.
(3) A relevant person who falls within paragraph (a) of the definition of “relevant person”
in section 2 (1) shall not be considered as unable to make a decision in respect of the
matter concerned unless all practicable steps have been taken, without success, to help
him or her to do so.
(4) A relevant person who falls within paragraph (a) of the definition of “relevant person”
in section 2 (1) shall not be considered as unable to make a decision in respect of the
matter concerned merely by reason of making, having made, or being likely to make, an
unwise decision.
(5) There shall be no intervention in respect of a relevant person unless it is necessary to do
so having regard to the individual circumstances of the relevant person.
(6) An intervention in respect of a relevant person shall—
(a) be made in a manner that minimises—
(i) the restriction of the relevant person’s rights, and
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(ii) the restriction of the relevant person’s freedom of action,
(b) have due regard to the need to respect the right of the relevant person to dignity, bodily
integrity, privacy, autonomy and control over his or her financial affairs and property,
(c) be proportionate to the significance and urgency of the matter the subject of the
intervention, and
(d) be as limited in duration in so far as is practicable after taking into account the
particular circumstances of the matter the subject of the intervention.
(7) The intervener, in making an intervention in respect of a relevant person, shall—
(a) permit, encourage and facilitate, in so far as is practicable, the relevant person to
participate, or to improve his or her ability to participate, as fully as possible, in the
intervention,
(b) give effect, in so far as is practicable, to the past and present will and preferences of
the relevant person, in so far as that will and those preferences are reasonably
ascertainable,
(c) take into account—
(i) the beliefs and values of the relevant person (in particular those expressed in
writing), in so far as those beliefs and values are reasonably ascertainable,
and
(ii) any other factors which the relevant person would be likely to consider if he or
she were able to do so, in so far as those other factors are reasonably
ascertainable,
(d) unless the intervener reasonably considers that it is not appropriate or practicable to
do so, consider the views of—
(i) any person named by the relevant person as a person to be consulted on the
matter concerned or any similar matter, and
(ii) any decision-making assistant, co-decision-maker, decision-making
representative or attorney for the relevant person,
(e) act at all times in good faith and for the benefit of the relevant person, and
(f) consider all other circumstances of which he or she is aware and which it would be
reasonable to regard as relevant.
(8) The intervener, in making an intervention in respect of a relevant person, may consider
the views of—
(a) any person engaged in caring for the relevant person,
(b) any person who has a bona fide interest in the welfare of the relevant person, or
(c) healthcare professionals.
(9) In the case of an intervention in respect of a person who lacks capacity, regard shall be
had to—
(a) the likelihood of the recovery of the relevant person’s capacity in respect of the matter
concerned, and
(b) the urgency of making the intervention prior to such recovery.
(10) The intervener, in making an intervention in respect of a relevant person—
(a) shall not attempt to obtain relevant information that is not reasonably required for
making a relevant decision,
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(b) shall not use relevant information for a purpose other than in relation to a relevant
decision, and
(c) shall take reasonable steps to ensure that relevant information—
(i) is kept secure from unauthorised access, use or disclosure, and
(ii) is safely disposed of when he or she believes it is no longer required.
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