General principles of law relating to people with mental disorder

Michael Gunn

Kay Wheat

Introduction

This chapter provides a scheme for assisting in the analysis of two areas of law that provide some of the general principles that operate in relation to mentally disordered offenders. These two areas are (a) the law concerning decision-making and other action-taking to which the concept of competence is crucial, and (b) the law of responsibility in relation to liability for criminal offences and the tort of negligence. Whilst the focus of the chapter is on the law of England and Wales, it is clear that there are similarities in other common-law jurisdictions, and in other jurisdictions that have borrowed ideas from common-law jurisdiction, such as Japan, in relation to the concept of informed consent.

Decision-making and action-taking law and competence

Generally, the law in relation to decision-making and action-taking might take one of three approaches to mentally abnormal offenders.

The law might adopt the same approach for mentally abnormal offenders as for anyone else.
The law might adopt an approach dependent upon the competence of the individual that might be affected by the mental state of the mentally abnormal offender.
The law might adopt an approach recognizing the impact of being a mentally abnormal offender that may be based upon the effects or mere status of the mental state.

There is no reason to examine further the law that is not different for the mentally disordered.

Autonomy and Competence

The most appropriate approach that introduces different law is by reliance upon competence or capacity. Internationally, there is increasing acceptance that, where someone is incompetent to make their own decisions, there must be a route to making such decisions on their behalf. For example, in Japan, the approach of informed consent has been adopted and whilst there is not yet a fully developed concept of competence, it is accepted that that is the next necessary development. Where there is significant variation is in the approach to adopt if someone is not competent. Traditionally, the approach has been to adopt guardianship whereby someone is either under guardianship or not and if so that all decisions are taken by the guardian. More recently, a more varied approach has become preferred whereby the decisions taken by others are only those that the individual cannot take and the basis for taking those decisions is the decision that the incapacitous would have made if competent and otherwise the decision that is in their best interests. It must be accepted however that this may be viewed as an approach grounded in a particular approach to law and ethics, i.e. that grounded in Western societies. Even there, there is a tradition for making decisions on a paternalistic basis, that is largely now discredited, though there are also concerns about the focus on autonomy. However, in other societies much greater emphasis is placed on the importance of the family as decision-makers or the basis of a decision on the presumption that the individual is a part of a particular society that has a genuine and proper interests in decision to be made on their behalf. Having recognized that as an approach, this chapter will largely focus upon the Western legal systems’ basis, using England and Wales as an illustrative jurisdiction.

Increasingly, there is recognition internationally that action should only be taken with regard to a person if either they are incapable of deciding or acting for themselves or if they present a harm to others (or self) and that harm is linked with a mental health problem. The extent to which different jurisdictions have a developed view of respect for the principle of autonomy and its legal application through a test for capacity or competency unsurprisingly varies in practice. But the major issue is how decisions are to be made if someone is incapable.

International statements of principle

Acceptance of respect for the principle of autonomy can be seen through at least two international instruments. Nascently, it can be identified in the provisions of the United Nations Declaration on the Rights of Mentally Retarded Persons (1971) which includes the following commitments.

1 The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.
2 The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation, and guidance as will enable him to develop his ability and maximum potential….
5 The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests.
6 The mentally retarded person has a right to protection from exploitation, abuse, and degrading treatment….
7 Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.

More recently, the Council of Europe has agreed a set of recommendations that should be implemented across Europe and are attracting significant international attention, e.g. by the South African Law Commission. The Principles Concerning the Legal Protection of Incapable Adults (Council of Europe, 1999). As Jansen demonstrates, the Recommendation confirms the functional approach to capacity and seeks to provide the incapable adult, where necessary, with representation, assistance, measures of protection, and other arrangements. The Recommendation opens with a statement that underpins the general approach adopted in this chapter:

‘I.1. The following principles apply to the protection of adults who, by reason of an impairment or insufficiency of their personal faculties, are incapable of making, in an autonomous way, decisions concerning any or all of their personal or economic affairs, or understanding, expressing or acting upon such decisions, and who consequently cannot protect their interests.’

This is followed up by an important statement that captures an underlying theme for most jurisdictions endeavouring to provide suitable approaches.

‘II.1 In relation to the protection of incapable adults the fundamental principle, underlying all the other principles, is respect for the dignity of each person as a human being. The laws, procedures, and practices relating to the protection of incapable adults shall be based on respect for their human rights and fundamental freedoms, taking into account any qualifications on those rights contained in the relevant international legal instruments.’

The principles adopted are then:

securing the maximum preservation of capacity that demands a functional approach to capacity and so not accepting that someone is either capable or not capable for all decisions, but may be able to make some decisions and not others (II.3.1) and that no step should be taken unless it is necessary (II.5.1).
where steps are taken they must be proportional to the degree of capacity retained and they should be tailored to the needs and circumstances of the incapacitous person (II.6.1).
there just be fair and efficient procedures for the taking of steps which must protect human rights and prevent possible abuses (II.7. 1 & 2). These requirements are expanded upon in Part III.
the interests and welfare of the incapacitous person are the paramount consideration, thus ruling out a paternalistic basis for the taking of steps (II.8.1).
the past and present wishes and feelings of the incapacitous person should be ascertained as far as possible, and should be taken into account and given due respect, and of most importance are the choices made by the incapacitous person themselves (II.9. 1 & 2).
there is a preference for action taken without the intervention of a judicial or administrative authority but that such powers must be limited and their exercise controlled (IV.18.1)
in the health field, no action should be taken if someone is capable of making the decision (V.22.1). The intervention may then be carried out if it is for the incapacitous person’s direct benefit and authorization has been given by their representative or by an authority or person or body provided for by law (V.22.2). As not all jurisdictions are ready for this approach even in Europe, an alternative is provided so that where a person is under protective steps, the incapacitous person’s consent should be sought even though there is someone with the power to make the decision (V.23.1). Where the incapacitous person cannot provide consent, the intervention is permissible where it is for their direct benefit and authorization has been given by their representative or by an authority or person or body provided for by law (V.23.2).

For Jansen, the key principles are, first, those in Principle 5, that is ‘Necessity and Subsidiarity’ as they ‘imply, first of all, that no measure of protection should be established unless it is necessary, taking into account the circumstances of the particular case. Secondly, in deciding whether a measure is necessary, account should be taken of any less formal arrangements which might be provided in particular by family members, or by public authorities or other means. The latter is the principle known as ‘subsidiarity’ ….’ The second key principle is, that in Principle 3, that is ‘that of maximum preservation of capacity …. In particular a measure of protection should therefore not result in an automatic complete removal of legal capacity.’ The third key principle is that in Principle 6, that is ‘Proportionality: where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances of the case. The measure should restrict the legal capacity, rights and freedoms of the adult by the minimum which is consistent with achieving the purpose of the intervention.’

The international picture is completed by the Convention on the Rights of Persons with Disabilities that was signed in 2006 but is not yet in force. This is a Convention of the United Nations and has 129 States as signatories to it. The Convention is a broad Convention and covers many areas not directly relevant to this Chapter. It takes a similar approach since, its General Principles (art. 3) are (a) respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; (b) non-discrimination; (c) full and effective participation and inclusion in society; (d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) equality of opportunity; (f) accessibility; (g) equality between men and women; and (h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities. In, for example, outlawing discrimination on the basis of disability (art. 4) and providing for freedom from exploitation, violence and abuse (art. 16), the Convention identifies the balance to be drawn between recognising the importance of decision-making with that of protecting those not capable of making their own decisions. It affirms the importance of the capacity to make decisions as a key requirement in the law. Article 12 states that State Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law and that State parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

Tests of capacity and competence

Thus, it can be seen that key to respect for the principle of autonomy is to have a workable concept of capacity or competence. The functional approach requires that the test of competence be related to the particular decision to be made, at the particular time that it must be made. There is a range of abilities that competence might involve. Much of the work on competence has been undertaken in the context of health-care law and in relation to consent to treatment. Much of this work has been undertaken in the United States. Two leading thinkers, Grisso and Appelbaum, have, with colleagues, identified four abilities that can be involved in competency:

evidencing a choice
understanding
appreciation
reasoning or rationality.

Any given jurisdiction will adopt one or more of these abilities⁽¹⁹⁾ in what it looks for in relation to competency assessments. There is no consistency, currently, as to which one or more of the abilities must be satisfied, except to say that almost all jurisdictions require understanding to some degree. This lack of consistency reflects the developing international understanding of the concept of competence. If we take English health-care law as an example, it can be seen that, in the early stages, understanding was the prime ability that had to be established, though the patient also had to evidence a choice. But, more recently, it seems that the courts are being attracted to an approach that may ultimately see competence only being satisfied where all four abilities are satisfied. Requiring rather more of an individual to satisfy the requirement of competence may be regarded as a better means of satisfying the crucial bioethical principle of self-determination or respect for the principle of autonomy, since if someone is not truly able to exercise self-determination, there is no respect for autonomy if, nevertheless, that person’s ‘decisions’ are legally binding. This means that rather more ‘decisions’ are open to the challenge on the basis that they are not made by someone competent to do so. A stringent approach to competence may be hard to accept. It must then be assessed (as a general matter) whether it would be better to reduce the standard and so enable more people to be assessed as competent or whether lowering the standard is illusory as being for the benefit of people whose competence may be open to question. Therefore it is hardly surprising that there continues to be debate as to the abilities that any individual must possess (and the level of functioning of that ability) in order to determine whether he or she is competent to make a particular decision. Wong et al.⁽¹⁹⁾ make the point, drawing on the work of others, that the functional approach is not without problems. They point out that it is time consuming, legal standards vary between jurisdictions, and there is uncertainty about the threshold to be satisfied in determining competence.

The English Mental Capacity Act 2005, sections 2 and 3 creates a definition of capacity consistent with those abilities. The central elements of that definition are to be found in sections 2(1) and 3(1).

2(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

3(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable –

to understand the information relevant to the decision,
to retain that information,
to use or weight that information as part of the process of making the decision, or
to communicate his decision (whether by talking, using sign language or any other means).

Three approaches

What is key is that the approach is a functional one that is it is related to the abilities of the individual at the time a decision is required and is not dependent upon either status or outcome of the decision, though these clearly have formed part of either definitions or approach to capacity in the past and are relevant factors in identifying the possibility that someone may not be capable of decision-making and in exercising judgment about that capacity. To state that competence if to be interpreted functionally.⁽¹⁹⁾ means that the status of the decision-maker is not determinative of the question of her or his competence. A status approach makes assumptions about an individual’s decision-making competence on the basis of a particular characteristic, and there is no empirical evidence to support the validity of such an approach.⁽¹⁹^,²¹⁾ The mental state of the decision-maker may be the reason why competence is put into question, but mental state in itself is rarely, if ever, sufficient to determine the matter. Mental state may have relevance to decision-making in that certain states will impact on the ability to understand and process information. Furthermore, the outcome of a decision is also not in itself sufficient to determine the matter. The fact that any given decision is not reasonable does not mean that the decision-maker is not competent to have made that decision. For example, the simple fact that a patient disagrees with the doctor does not mean that the decision is that of an incompetent decision-maker, though lack of congruence with the proposals of a doctor may cause questions to be asked about decision-making competence. The outcome approach has been rejected in a number of jurisdictions.⁽¹⁹⁾ It is internationally recognized that anyone can make what might be termed objectively silly decisions without necessarily giving rise to doubts about competence. However, the regularity with which silly decisions are made may raise doubts about competence as also will the inter-relation between mental state and quality of decisions. In the United Kingdom, these points are further reflected in the fact that there is a legal presumption that a person is competent to make her or his own decision once adult state is reached.

The functional approach requires that the test of competence be related to the particular decision to be made, at the particular time that it must be made.⁽¹⁹⁾ There is a range of abilities that competence might involve. Much of the work on competence has been undertaken in the context of health-care law and in relation to consent to treatment. Much of this work has been undertaken in the United States. Two leading thinkers, Grisso and Appelbaum,⁽²⁰⁾ have, with colleagues, identified four abilities that can

The functional approach to decision-making is not limited, in its application, to health-care decisions, even though that is where most of the debate has taken place. In principle, it may be applied to any type of decision. For example, the making of wills and the entering into of contracts are obvious examples where a functional approach applies, but it does not follow that the same abilities will be required for these decisions as for treatment decisions. Under the law prior to the Mental Capacity Act 2005, this is demonstrated by an old case which was, nevertheless, the leading case in relation to the making of wills. Banks v. Goodfellow, requires that a person:

ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.

This test demanded not just understanding, but also the appreciation and the reasoning ability noted above. Whilst the level at which the will writer must operate is not that of a lawyer, nevertheless he or she must be aware of the context in which the will is being made and must think through the competing potential demands on his or her estate. Of course, will writers can make silly dispositions, even going so far as to exclude financially dependent relatives. However, it must be recalled that an outcome that is questionable or unreasonable is not the same as the will or decision being made on the basis of an unacceptable reasoning process. An eccentric person might well, for example, not wish to leave anything to his or her relatives. Thus, in any jurisdiction, care must be taken to consider a particular test in deciding which of the four abilities are to be identified, and the answer to that question may demand very careful analysis.

Persons not competent to make decisions or take action

If a person is not competent to make a decision for themselves, there is more variability as to the approach to be taken. Some of this difference is related to the commitment to do the best for a vulnerable person and leads to a desire to act paternalistically, so making the decision that objectively is in the best interests of the individual A more frequent approach is to make the decision that that individual would have made for themselves. This is most recently reflected in the English Mental Capacity Act.

If a person is not competent to make a decision or to take certain action, the law increasingly provides mechanisms whereby these decisions can be made. In England and Wales, until the abolition of the sign manual by the Mental Health Act 1959, the Crown had the power and the process to make decisions in the best interests of a person not competent to decide or to take action. This power is the basis of many substitute decision-making procedures in common-law jurisdictions (including the United States). The specific adaptation is jurisdictionally specific. In some jurisdictions, it has been used to follow from generic decisions as to competence and to create overarching substitute decision-making procedures (e.g. those jurisdictions that adopt a full guardianship of the person approach). In England and Wales, the first approach, after the abolition of the sign manual procedure, was to allow for people to be received into guardianship (a process that was not, interestingly, dependent upon a finding of incompetence), but this proved not to be an acceptable procedure. Current English guardianship is very much only a community mental health power that does not enable anyone else to make decisions on behalf of the person received into guardianship.⁽³³⁾

In England, the courts had to invent a procedure for making decisions on behalf of someone who was not competent. The House of Lords, the senior English court, provided a mechanism in relation to treatment decisions whereby, if a person was found to be incompetent, treatment could lawfully be provided if it was necessary, that is if it was for the life, health, or welfare of the patient and was in her or his best interests. Despite substantial improvements that made the approach identify what was the one, best approach that took into account the full range of interests (see below), this judicial approach has been replaced by a statutory format. The approach introduced by the Mental Capacity Act 2005, does not take a full guardianship or guardianship of the person approach and is not necessarily triggered by a judicial or administrative authority. Rather, a person may act on behalf of an incapacitous adult (as defined by sections 2 and 3, see above) provided she or he acts in that person’s best interests (as defined by section 4, see below), but such actions are subject to significant procedural protections, since some areas must be referred to other procedures (e.g. in relation to research, where sections 30–34 allow intrusive, nontherapeutic treatment consistently with the European Convention on Biomedicine), some decisions cannot be made as they are too personal (so such matters as consenting to marry or to entering a civil partnership and consenting to sex do not fall within the Act, see section 27), some decisions necessitate, where carer’s views are not available, the views of an independent mental capacity advocate to be taken into account (sections 35–41), some decisions may be made by a court or by a court appointed person where the court determines that is appropriate (through the new Court of Protection, with preference given to decisions made by the court rather than the appointment of a deputy), and all decisions are challengeable in court. This latter element is vital. Whilst this approach is clearly consistent with the provisions of Recommendation 99(4), it is challengeability which lies at the heart of its compliance with human rights obligations. What the Act does not do is require an initial judicial or administrative decision. It is not triggered by having to go to court or through some other governmental or quasi-governmental body. This will no doubt be challenging to many whose commitment to due process and procedural justice would rely upon judicial instigation of a procedure. However, this is not the only necessary approach, as is evidence in Recommendation 99(4). What is provided instead is a straightforward ability to challenge decisions by taking a matter about competence or about decisions made on behalf of someone who is or may be incompetent to the Court of Protection. Some people can launch a case as of right, some need the permission of the Court (section 50). This is clearly sufficient to meet the demands of, for example, Article 6 of the European Convention on Human Rights, provided it operates in practice. If it fails to take cases that should get to the Court, then that might be a base of challenging the provision. The advantage of this approach, which are consistent with that of Recommendation 99(4), is that it more closely reflects the process applicable in relation to someone who is capable, it places emphasis on the fact that most decisions are taken on behalf of an incapable person by carers and those decisions are proper and appropriate and it provides a system that can work (that is the workload should be manageable and not be prohibitively expensive).

The focus for making decisions on behalf of another in England and Wales as in most jurisdictions, is individualized, function specific and based on the best interests of the individual. This best interests approach is, realistically, the only one available to the courts where there is no evidence of that person’s preferences. Substituted judgement is, however, an appropriate approach where there is sufficient evidence of the decision that the person now incompetent would have made.⁽³⁰⁾ So, for example, decisions made in advance, advance health-care statements, are legally valid⁽²²⁾ (see also Kennedy and Grubb,⁽³⁰⁾ referring to such an approach in Florida, Ontario, Manitoba, and Victoria). Indeed, the old thinking that substituted judgement was an alternative to best interests should be re-thought so that what an individual wants is what is in her best interests, but if that is not known, nest interests is the only available approach. Where the person is not competent, the best interests approach, in England, was achieved by deciding whether what the doctor proposes in the given case is a treatment regime of which a responsible medical opinion would approve. This approach to ‘best interests’ was rightly severely criticized for it failed to address the issue by concentrating upon the interests of incompetent persons but professionalized it through one (medical) profession when it is possible to take a broader view of the issues in question when deciding upon what treatment to agree upon. Some of these criticisms were ameliorated by judicial developments (see, e.g. Re S (Adult Patient: Sterilization) and Re A (Male Sterilization)) that ensured two key changes. First, it was decided that, where there were options of a number of possible, acceptable approaches, only one of those options could be in the best interests of the individual. Secondly, in deciding what was in someone’s best interests that should not be limited to scientific or medical matters, but should take in the whole range of social, welfare, and emotional factors. Despite such substantial judicial development, new law is in place through the Mental Capacity Act 2005. Section 4 provides a definition of best interests.

4(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of –

the person’s age or appearance, or
a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3) He must consider –

whether it is likely that the person will at some time have capacity in relation to the matter in question, and
if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit, and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) He must consider, so far as is reasonably ascertainable –

the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
the beliefs and values that would be likely to influence his decision if he had capacity, and
the other factors that he would be likely to consider if he were able to do so.

(7) he must take into account, if it is practicable and appropriate to consult them, the views of –

anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
anyone engaged in caring for the person or interested in his welfare,
any donee of a lasting power of attorney granted by the person, and
any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

The law relying on status

Whilst it has so far been asserted that approaches not facilitating decision-making by a competent person are the norm and that capacity should not be questioned on the basis of status, it is the case that status may play a role. Indeed, for example, in England and Wales status has, in the past, been the basis for effectively determining whether someone is capable, but increasingly these are being removed, as is the case across the globe. It is also a move demanded by international instruments, such as the Council of Europe Recommendation.

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