Mohammed T. Abou-Saleh

Principles and Practice of Geriatric Psychiatry.Editors: Professor John R. M. Copeland, Dr Mohammed T. Abou-Saleh and Professor Dan G. BlazerCopyright & 2002 John Wiley & Sons LtdPrint ISBN 0-471-98197-4 Online ISBN 0-470-84641-0139bA Damning Analysis of the Law and the ElderlyIncompetent Patient—Rights, What Rights?Peter EdwardsPeter Edwards & Co.,* Hoylake, UKDoes the legal process provide a framework in the UK forprotecting the rights of those who lack the capacity to make theirown decisions? In what way should the law impact on families,professionals and carers? Surely you, the practitioner, you thecarer, you the family member take decisions on what you believeto be in that person’s best interests? You are there to do a goodjob exercising sound judgements. You are motivated by a desire toprotect, to support and to make safe decisions in the best interestsof the incapacitated person. You surely do not want to beimpeded by considerations of an incapacitated person’s legalrights. But what if the person him/herself wishes to make adifferent decision? You may consider it unwise or even risky forhim/her to follow his/her desires. On what legal basis does onecitizen override the ability of another to exercise choice? Whodecides?DOES THE LAW HAVE A ROLE?Why is the law of incapacity/incompetence so important when itcomes to protecting rights? For a person with capacity, the lawrecognizes the right to take responsibility for decisions. However,we must then bear the consequences of those decisions. Incapacityequates with society’s view that incompetent adults may have tobe protected. They may lack the ability to realize the consequencesof the exercise of their decisions and that could place them at risk.The dilemma is therefore apparent. At some point we cross thatinvisible divide between capacity and incapacity; between the rightto make unsafe decisions and the right to be protected from them;between taking responsibility and the loss of the power to exerciseour own judgement; between having enforceable rights and not.For those who are deemed to lack capacity, the responsibilityfor deciding what is in their ‘‘best interests’’ may lie with those forwhom there is a conflict of interest. They may be going to inheritthe estate or they may even be those who are perpetrating abuse.The state of UK law leaves the incapacitated ripe for exploitation.Proposals for a change in the law appear to have stalled.Perhaps when it comes to making a will, preparing an enduringPower of Attorney or protecting someone’s financial affairs fromfraud or exploitation, it is easy for us to accept the need for aprotective framework. However, what about the concept ofenforceable human rights? When should the elderly be allowed totake risks?We, ourselves, have rights and we can take steps to enforcethem. But if we have lost the capacity to fight for or defend ourrights, what then? When we have lost capacity, is there a right thatrestrains the distribution of our confidential information? ‘‘I don’twant to go into a nursing home.’’ ‘‘I want to choose with whom Ilive and with whom I have a personal/sexual relationship.’’ ‘‘No,whatever they say, I do not believe that my children are acting inmy best interests.’’ Who will enforce my rights now? Who willlisten?On 2 October 2000, the UK Government belatedly brought intoforce the Human Rights Act 1998 in England. It sets out the rightsand responsibilities of the citizen and provides a framework basedon the European Convention of Human Rights and FundamentalFreedoms. It provides a baseline of rights below which the citizenshould not be allowed to fall and introduces a rights culture laidon our domestic legislation. The indications are that it could havefar-reaching effects on the practice of old age psychiatry, as well asimpacting on the causes of action open to an increasingly agedpopulation when their rights and opportunities are infringed.The greatest impediment to the development of a rights-basedsystem is the identification of the individual who will act on behalfof the incompetent client. Who will make the bridgehead to thelawyer? Who will blow the whistle? How does the incompetentclient get to know of his/her rights in the first place? Whathappens when we cannot trust the families? The questions areeasier to identify than the answers.ROLE OF THE LAWThe role of the law must be viewed within the context withinwhich it prevails. At present there is no doubt that in the UK a thepercentage of the population reaching the traditional retirementage b is increasing and has done so since the post-war boom of the1950s and 1960s. This, of course, has both political and financialramifications. Linked to this has been a gradual increase inincome, disposable assets such as homes, cars and other property,as well as a notable increase in the number of elderly people withtheir own assets.*A specialist mental health law firm.a Unlike the Republic of Ireland, where the average age of the population is 28 years of age.b 65 for men and 60 for women.Principles and Practice of Geriatric Psychiatry, 2nd edn. Edited by J. R. M. Copeland, M. T. Abou-Saleh and D. G. Blazer&2002 John Wiley & Sons, Ltd