Even supposing that it is established that a person lacks the level of capacity necessary for deciding an issue for themselves, nobody, not even a carer, relative, spouse or parent of an adult person has an absolute legal right to consent on behalf of the person concerned, to intervention which would otherwise be tortious (a wrongful touching, for instance). However, when someone has taken personal responsibility for someone else, they have something less than a legal right to decide, but still something which will suffice for most people in a caring role – a right to act on their view of a person’s best interests in day to day welfare matters, until someone else disagrees.
Once a person is agreed or proved to be incapacitated, it seems to have been accepted by the Courts that someone taking on a substantial caring role, has at least a primary right to make daily living decisions central to the incapacitated person’s welfare. When we say a ‘primary’ right, we mean a right that the law will protect, until someone else disputes, on cogent grounds, the carer’s need to act on their view of the appropriateness of current or proposed arrangements.
This right is derived from the common law doctrine which protects the well-intentioned doctor, surgeon or nurse, from being prosecuted or sued for assault, in relation to things they feel driven to do to or for someone, when having good grounds for thinking that that person is incapacitated. The doctrine is called the doctrine of necessity, but it merely provides a shield against suit – it doesn’t mean that a vulnerable person’s physical integrity can be interfered with, willy nilly, with impunity. A court can be asked in advance to sanction what is proposed, or can find as a fact (later, when the action has been done) that no reasonable professional would have regarded the situation as necessitating the intervention on an emergency basis (ie going on to remove someone’s womb in the middle of a routine surgical operation); or that the perpetrator did not believe at the time that the person was incapable of making a decision about their own situation (ie where someone physically helpless is made to go through with an operation which s/he does not want and has lucidly refused consent). In either case, the interference would be declared to have been unlawful.
The question of what a local authority (as opposed to a relative, friend, or spouse) is impliedly allowed to do to and for clients which it has acquired through its statutory duties of assessment and service provision, when capacity has deteriorated markedly since the client first became a client, has never been decided.
The assumption of professionals is that it cannot be lawful to force welfare services onto people who seem not to want them, and that it is contrary to the (social work) value of maximising the empowerment of individuals. But the equally strong professional and organisational concern is with the risk of harm if no such services are provided – and given the public authority’s overall role, intervention is usually the choice, when there is no-one else to back up an individual’s claim to capacity, or no-one else to consent or refuse consent to a clearly incapacitated person’s proposed Care Plan. Sometimes, a calculated risk about the chances of any challenge being made, by a person who may be disadvantaged themselves, might be taken by the authority, which may seem like common sense, even if it turns out to be unlawful.
For example, if a local authority knows that an elderly person has been charged and found guilty of an assault on his/her mother, a dementia sufferer, for whom s/he has provided substantial care in the past, (even if the carer was given a conditional discharge because the magistrate was very understanding about the pressure the carer was under) a local authority might decide to transport the mother from hospital or day care to a residential home, and ban visits from the carer. We think that this is not a lawful course to pursue, if there is any room for doubt as to the mother’s mental capacity as to where she wants to live, and that since there is a duty to respect the private and family life of both client and carer, that duty itself requires the local authority to take the initiative and investigate mental capacity and/or take proceedings to establish capacity and best interests. However, if the authority were to bring declaratory relief proceedings to obtain a declaration that this was in the mother’s best interests, a judge, if s/he found the mother to be incapacitated, would probably agree with the local authority’s view as to risk, and the action would never have been unlawful – so one can understand why an authority might go ahead and act on its decision and wait to be challenged by the carer. It would take a very determined person indeed, to be prepared to take the matter to court and argue the question of capacity on behalf of the mother; and to withstand the court’s scrutiny of the risk of future harm to the mother, in light of the previous assault conviction.
The Bournewood case has recently made it clear that the common law doctrine of ‘necessity’ will justify the enforced sedation of a person and their subsequent transportation to hospital for admission as a voluntary patient under s131 of the Mental Health Act, without a s. 2 or s. 3 application, even when the person is someone who is merely passively acquiescent for whatever reason, on arrival. The case involved someone who was self-harming quite badly, which meant that the original sedation was administered under the doctrine of necessity for medical treatment, by a doctor. Thereafter the sedation effectively meant that the man put up no resistance, and it was possible for the staff to assert that everything that happened after admission was all an aspect of treatment within the hospital for his mental disorder, justified by necessity.
That case has been taken on to the European Court so that the implications for the voluntary patient can be considered against a human rights perspective. What is clear, however, is that the Bournewood case is not precedent authority for the proposition that residential care staff have a legal right to contain and manage incapacitated clients through medication. If there is any general ‘best interests’ power reposed in those taking day to day care of individuals, we think it is likely to be confined to those working under contract to the local authority that owes the client a duty, or a contract to which a relative was party, on behalf of the service user. It will also be restricted to the scope of daily living decisions, such as dressing, toileting, feeding, bathing, and contact and living arrangements, not medical intervention.
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