Mohammed T. Abou-Saleh

784 PRINCIPLES AND PRACTICE OF GERIATRIC PSYCHIATRYIn examining a rights-based culture, it is relevant to remindourselves that a notable shift emerged during the Conservative/Thatcherite years from 1979 onwards, when notions of solidarityand community waned and a ‘‘self’’ culture emerged.What does all this mean in the context of the law, elderlypeople and incapacity? What does it mean within a societyfocused on ‘‘self’’ and where there are a greater number of assetsand a greater number of people who need to have their rightsprotected?Capacity is a concept based in our common law. Therefore,those with the final say are the judiciary. However, rarely is thelaw asked to be the arbiter of individuals’ capacity. Where there isdispute, it is always possible to seek a declaration from the courts.In practice, however, the final decision is taken by the myriad ofindividuals who come into contact with the incapacitated person.It could be the doctor, the nurse, the social worker, the staff in thenursing home or even the family. When it comes to medicaltreatment, the doctor who is in charge of treatment has theresponsibility to make that decision. Some believe that onlypsychiatrists can perform this task. Psychiatrists get called inunnecessarily by other doctors (e.g. general practitioners,surgeons or anaesthetists) who do not seem to realize that theythemselves are responsible. Usually those who are deciding oncapacity have no concept of the test to be applied and merelyassert that the individual will now have decisions made for him/her. It is a chilling scenario, particularly as many of us mayeventually be in this predicament.It is worrying that at times, medical staff, without anyconsideration of capacity, seek to obtain consent to a medicalintervention from a person who does not have the capacity toconsent. If that patient declines to agree with the treatment, thenit is not given. It could perhaps have been justified by the commonlaw doctrine of necessity. Failure to treat under those circumstancescould amount to negligence.Any process that purports to be based on a rights-based systemmust not be arbitrary. There should be a clear framework withinwhich decisions are made. This should particularly be so when theessence of the decision is to strip away from the individual theright of autonomous decision making.taking place may be the very people who are perpetrating it. Whothen will activate the process?Whilst we have capacity, it is possible to make plans that wouldresult in avoiding the costly involvement of the Court ofProtection. It is possible to complete a simple document calledan Enduring Power of Attorney. This must be completed whilst aperson still has capacity and allows one to appoint theindividual(s) who will control one’s financial affairs when and ifone loses capacity. The simplicity of the process can allow thosedetermined to abuse to prevail on the vulnerable person, who mayeven lack the capacity to execute the document. The principle isthat, as we have capacity, we have the right to make unwisedecisions. When capacity is lost, the Enduring Power of Attorneybecomes effective by registering it with the Court of Protection.This is essentially an administrative task.Second, the law can be invited to consider what is in the ‘‘bestinterest’’ of the incapacitated person. This can involve the right tobe supported and to be legally represented. However, if thecriteria for appointing a receiver under the Court of Protectionare met, then the incapacitated person cannot instruct a solicitoror bring legal proceedings in his/her own right. This role must beundertaken by a ‘‘litigation friend’’ 1 . This objective is furtherendorsed by the Human Rights Act 1998 which sets out topromote the fundamental rights, freedoms and liberties of UKcitizens. Article 6 protects the right to a fair trial. The difficultyarises when seeking a mechanism to achieve this. Yet again, theprocess of protection is entirely dependent on someone makingthe link between the incapacitated person and the judicial process.Third, and perhaps most significantly, is the role of the law toprotect individuals from ill-treatment, abuse, neglect and exploitation.The forms that these take are endless and nauseating, as wesee in the range of daily media reports illustrating that peopleknow no bounds in gratifying their excesses against vulnerablepeople, in areas such as money, possessions and physical andsexual abuse. The obvious difficulty in using the criminal justicesystem is that the abused person may not have sufficient capacityto give evidence. Unless there is separate, corroborative evidencethe perpetrator may go unpunished.OBJECTIVESWhat should be the guiding objectives and principles upon whichany such decisions are to be based? Further, how is capacity to beassessed and what are the tests that the law will endeavour toapply?When the citizen turns to the law to find an answer, it soonbecomes apparent that in the UK it is a mess. There is not oneseparate body of law established to deal with elderly incapacitatedpeople. However, what can be determined from the case law andstatutes that do exist, is that the law has constructed a number ofoverriding objectives.First, there are the means by which the duties that are owed tothose who lack capacity are enforced. This can be illustrated infinancial and property matters, where the Court of Protection canbe invited to intervene c . A Receiver can be appointed to takecontrol of a person’s financial affairs and the Receiver isanswerable to the Court. The great weakness here is thatprofessionals and others who have concerns about the possibleexploitation of an incapacitated individual will often know little ofthis remote and distant Court. It only has one base, and that is inLondon. What is more, those who are aware that exploitation isPRINCIPLESThe above objectives are not, and in fact cannot be, freestanding.They are guided by a set of prevailing principles that aretransferable to the development of the law itself.In exploring the principles, it should be noted that muchresearch was done by the Law Commission 2 and the LordChancellor’s Department 3 in the area of Capacity.In UK law, all adults are presumed to be competent and as suchwill have the same rights and opportunities as others. The burdenof proof therefore lies on those who seek to assert the citizen’slack of capacity. Where there is the need to interfere in the lives ofthose who lack capacity, any such intervention should be theminimum required in the circumstances. Where an individual hasbeen found not to have capacity, nevertheless, he/she should beencouraged to take the kind of decisions that he/she might havetaken before capacity was lost. This may sound like an effectiveset of principles. However, they need to be set in their practicalcontext.Sadly, it may be in the interests of everyone concerned that theindividual should be treated as if he/she were no longer capable ofmaking his/her own decisions. After all, an elderly person maywant to make a decision that we might consider unwise, foolish orc Court of Protection is an Office of the Supreme Court and the provisions cited are to be found in s. 93 of the Mental Health Act 1983.