2016: Decision making and legal capacity in dementia
Consent to medical treatment
Patients requiring invasive medical / surgical procedures should give consent using the relevant forms on hospital or primary care settings. Medical staff considering making a decision regarding a medical treatment or intervention for someone who lacks capacity must follow their agency consent policy/guidance and use the appropriate forms. Where consent to medical treatment is required, the doctor/health professional proposing the treatment should be responsible for the capacity assessment. The General Medical Council and other professional bodies set out standards for professional practice which must be followed.
The right to refuse treatment
The advice given by the Department of Health (2001) in itsReference Guide to Consent for Examination or Treatmentregarding advance refusals is as follows: "Case law is now clear that an advance refusal of treatment which is valid and applicable to subsequent circumstances in which the patient lacks capacity is legally binding" (Department of Health, 2001). It goes on further to state that "Failure to respect such an advance refusal can result in legal action being taken against the practitioner" (Department of Health, 2001). It is important that Advance Statements are taken into consideration when gaining consent in the circumstance of the patient lacking mental capacity. Reasonable effort should be made to ensure that the patient's previous wishes are taken into consideration.
The legal status of advance directives in Jersey
There is no statute in Jersey that governs the use of living wills. The law on the subject is set out in the decision of the Royal Court in Attorney General v X 2004 JLR 1, which upheld the right of a legally competent adult to give an Advance Directive (another name for a living will) refusing nutrition, re-hydration or medical treatment, which would not only be effective while the patient maintained the necessary mental capacity but would remain effective after he had lost it. For the living will to be legally binding the individual must have had mental capacity when he made it, have envisaged the type of situation that has subsequently arisen, and have understood the consequences of the decision. Provided it satisfies the relevant criteria, it will be binding after he has lost that capacity.
Conditions surrounding the writing, validity and registering of an advance directive
When making a living will you should be mentally able and not suffering any mental distress. You must understand the implications of your decisions. You may have a mental illness and still make a valid living will as long as you understood the implications of what you were doing. You must be competent to make the decision in question. Competence to make medical decisions does not imply necessarily that you need to be competent to make other decisions (e.g., relating to financial affairs).
When making the living will, you should, in order to form a legally binding living will, ensure that you are:
- fully informed of the nature and consequence of the living will
- clear that the living will should apply to all situationsorcircumstances which arise later:
- not pressurised or influenced by anyone else
- over the age of 18
What an advance directive can cover
Only a properly written ‘advance directive’ is legally binding. A living will can outline treatment, or specific procedures, which you would want or would not want if you became seriously ill, and lost mental capacity. The living will need to specify a clearly identifiable “trigger” event that causes the requirements of the living will to be acted upon. This might reasonably be expected to be the onset of incompetence, or perhaps the occurrence of some further event (such as a treatable condition like pneumonia) after incompetence has been established. Everyone involved – clinical care-givers, relatives, carers – must agree that the trigger event has occurred. This may require a doctor to confirm that there is no hope of recovery and, in many cases that the illness will result in death very soon. All clinical care-givers are then bound by the conditions of the living will and information about the living will then be recorded in the clinical records. A living will can only reflect a person’s wishes at the time at which it was written, and many circumstances, including improvements in medical science and available treatments can change as time passes. The living will have to be interpreted to make sure that the situation it describes does still apply.
A living will cannot be used to:
- refuse basic nursing care, i.e. basic hygiene and pain relief
- stop staff offering you food and drink by mouth
- request euthanasia or unreasonable treatment
In addition, a living will cannot allow refusal of treatment if this goes against a valid court order made due to the person’s medical condition. It may not specify any particular treatment that should be applied, if this conflicts with the professional judgement of the responsible doctor. Finally, it cannot require a doctor to act illegally, for example by assisting euthanasia.
Obligation to comply with instructions contained in an advance directive
Doctors have legal and ethical obligations to act in the best interests of their patients, which includes acting in accordance with the past and present wishes and feelings of the patient as well as clinical factors. Doctors must be satisfied that illness, medication, false information or pressure from other people did not affect the patient’s capacity at the time of deciding. Doctors must comply with the patient’s request even if they have a conscientious objection. Usually it will be possible for the doctor to step aside to allow a colleague to manage the patient in accordance with the wishes to withhold life prolonging treatment, however if an emergency arises and this is not possible the doctor must comply with a legally valid living will.
Only in exceptional cases are doctors and nurses able to override a living will. There must be evidence to suggest that you did not understand the implications of your living will when you drafted it, or that you did not envisage this situation.
Emergency treatment should not normally be delayed in order to look for a living will, if there is no clear indication that one exists. The principle of necessity allows doctors and nurses to provide treatment without consent. Healthcare professionals will be legally liable for disregarding the terms of a living will if they are aware of the statement’s existence and if it is applicable to the circumstances provided of course that the living will does not direct them to act in a way which the patient could not have directed them to act in while he was still mentally competent.
Amending, renewing and cancelling advance directives
Who decides if the conditions set out in the living will should continue to apply – for example if a person’s situation changes since he/she wrote the living will? Ultimately the health professional attending, usually the doctor in charge of your care, will decide whether the conditions set out in the living will should apply. The doctor will have to certify that you are mentally incompetent to give consent for the living will to apply. It is essential that any health professionals intending to act on directions given in a living will should have the living will itself in their possession. If the living will fulfil the criteria to be legally binding, the health professional must obey its terms or risk being charged with assault. That is why it is important to remember to destroy any previous version of the document after making changes to it. If the living will does not absolutely envisage the situation that has arisen, or if the living will nominate a healthcare proxy, a meeting will be convened with the proxy and where appropriate, other family members, at which the Doctor with responsibility for the patient’s care will sound out opinions and make a decision regarding the patient’s best interests. It is at this meeting that it will be necessary for someone to provide evidence that the person’s situation has changed since writing the living will. Living wills should be reviewed regularly, as it is important that you have not changed your mind between the date of making the living will and the date when you fall mentally incompetent. A living will can be altered at any time, and the alteration can be made orally, by telling your doctor. It is advised, however, that when an alteration is made, all copies of the previous living will are destroyed in order to prevent confusion.
Issues surrounding the loss of legal capacity
Capacity is the concept which refers to an individual having the ability to make a specific decision at the time it needs to be made. A person aged 16 + is assumed to be capable of making their own decisions. This assumption can only be overridden if the person concerned is assessed as lacking the capacity to make a particular decision for him or herself at the relevant time. The aim of the Multi-Agency Capacity Policy and Procedures [Jersey] December 2015 (CPP) is to provide a policy framework for Jersey to support people to make decisions for themselves or, failing that to ensure that decisions are made for the person in the person’s best interests. The CPP applies primarily to people aged over 16, who should be presumed to have capacity. This Policy has been developed in the absence of local legislation and will be reviewed when legislation is enacted.
This CPP has been issued to support all staff who are involved in the care and/or treatment of a Service User who may lack capacity in relation to a specific decision, when that decision needs to be made. The CPP and the Mental Health (Jersey) Law 1969 (MHJL) contain separate processes, that in some cases may both need to be used in respect of a Service User. Prior to an application under the MHJL it will often be appropriate for the decision maker to apply the CPP and consider whether the aims of any intervention could be safely achieved without resort to compulsory powers available under the MHJL. The MHJL applies to people who may have, or are diagnosed as having a mental disorder (which includes both learning disability and mental health conditions). The MHJL provides powers to compulsorily detain a person for the purposes of assessment and treatment where that is necessary in the interests of their own health or safety, or to protect other people. It also provides powers to place a person with a mental disorder into guardianship, so that they can be supported to live in a particular place determined by the guardian. When a Service User is detained under the MHJL their consent is required for care or treatment other than for their mental disorder and thus the CPP may apply.
The aims of the CPP are:
- to ensure awareness of the principles and values of capacity and best interests decision making;
- to ensure awareness of duties and actions to be taken in order to assess capacity and make decisions of behalf of people [only if a lack of capacity is established];
- to ensure awareness of the requirements to document assessments in relation to capacity;
- to use current research and knowledge around capacity to empower and protect service users and staff;
- using legal principles, best practice guidance and evidence from other jurisdictions
The policy and procedure have been guided by the legislation and codes of practice developed in the UK. The policy is intended to reflect the requirements of the European Convention on Human Rights which is enforceable in Jersey by virtue of the Human Rights (Jersey) Law 2000. Public authorities in Jersey are required to act compatibly with the rights in the Convention.
To assess whether a Service User lacks capacity, a two stage test should be used. That test should consider both the Service Users ability to make a particular decision and the causes of any inability to make the decision. When carrying out the test of capacity there is a duty on staff to ensure the person has the best possible opportunity to understand the information and communicate their decision. You must therefore take all practicable steps to help the person during the test.
Practical steps could include:
The use of pictures, simple language, non-verbal means or communication aids.
Using others such as family or speech therapists, who could help the person understand the information and can translate their decision where the assessor cannot recognise their means of communication.
A person can communicate their decisions using any method including for example by hand signals, other gestures or behaviour. It could be by simple muscle movements.
This reflects the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. For example, they may have capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack capacity to make more complex decisions about financial matters. The advantage of being issue specific is that it allows service users to make decisions in respect of one issue but not another, which maximises their decision making capabilities. It also reflects the fact that a person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity fluctuates. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the influence of alcohol or drugs. Finally, it reflects the fact that while some people may always lack capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves. If there is any uncertainty, capacity should be presumed. Someone’s capacity to make a decision for themselves should be assessed using the two-stage test of capacity. Both tests need to be met in the affirmative before a person can be determined as lacking capacity in relation to the decision under question. The fact that a service user may have, for example, a mental illness or dementia, does not of itself render that person incapable of making a particular decision. A finding on incapacity can only be made if it is established under test 2 that the impact of the condition is sufficient to render them incapable of making that decision. Prejudicial assumptions should not be made about capacity based upon a service user’s impairment, disability, age or appearance. In the absence of a capacity assessment any uncertainty has to mean capacity should be presumed.
- TEST 1
Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.) A wide range of conditions can amount to such an impairment or disturbance, including psychiatric illness, learning disability, dementia, brain damage or even intoxication with drink or drugs.
- TEST 2
If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? This means to have capacity to make a decision a person must be able to:
- Understand the information relevant to the decision (including the reasonably foreseeable consequences of making or not making a decision) and
- Retain that information (long enough to make the decision) and
- Use or weigh the information (as part of the decision making process) and
- Communicate the decision (in any recognisable way)
Information regarding the decision to be taken should be presented to the individual in a manner that will best meet their needs, so it may be necessary to seek advice from professionals such as Speech and Language therapy regarding communication. The timing and venue of an assessment, along with the provision of appropriate communication aids and information to make an informed decision should all be considered in any assessment of capacity. Where possible, the assessor should have an established relationship with the Service User and if there is a need for two assessors [see own agencies guidelines/policy] then at least one assessor should have an established relationship with the Service User. Some service users may have fluctuating capacity and if this is the case then it should be demonstrated and recorded that every effort has been made to accommodate this when looking at capacity issues.
Best interests should be considered in a broad sense – it is not just about what the person needs medically, for example, but also how will it affect their welfare, how will it impact on them emotionally, what impact it will have on their social circumstances. If there is a significant decision to be made relating to health or a change of residential placement, and the person has no family to be consulted, staff where possible should seek an Independent Capacity Advocate (ICA) to participate in the Best Interests decision making. Staff will need to be able to justify why they think a decision is in someone’s best interests, as it can be open to a legal challenge. Best interest decisions will need to be formally documented as required by your agency/service’s record keeping guidance.
Normally, it is not lawful for anyone to interfere physically with a person or their property without that person’s permission. If a person lacks the capacity to make these decisions and it is in the person’s best interests for an action to be taken, staff are allowed to provide personal care, deliver some healthcare treatments, and use money to go shopping or pay for necessary items. Staff are not expected to undertake capacity assessments and hold best interest’s meetings about these matters on a daily basis, as this would clearly be unworkable. For routine decisions, it will be sufficient for the judgements about capacity and best interests to be made and documented as part of the care planning process and reviewed with the care plan. Significant decisions will need separate Best Interests meetings and records.
Section 7 of the Mental Health Act 1983 (MHA) says that a guardian can be appointed to you if you:
- are 16 or over, and
- have a mental disorder of a nature or degree that warrants guardianship, and
- need a guardian for your welfare or to protect other people.
Guardianship is used to encourage people who live in the community to use services or to live in a particular place. It is often used with people who lack the mental capacity to avoid danger or being exploited, but can also be used for people with mental capacity who are considered to be vulnerable because of their mental health problems.
You can only be placed under guardianship if two doctors recommend this and another person then applies for you to be placed under guardianship. The application can be made by your nearest relative, but in most cases is made by an Approved Mental Health Professional (AMHP). The application is made to the local social services authority.
The guardian can require you to do certain things, e.g. live at a specified place, or attend particular places and times for treatment, occupation, education or training. But being under guardianship is not the same as being detained under a section of the MHA and you should still be free to come and go.
Even if you are under guardianship, you should be consulted about where you are required to live under the guardianship conditions, unless you are unable to make the decision at that particular time. If your guardianship follows a section 3, you should not be charged for services as they should be free under section 117 aftercare. If in doubt about whether you need to pay for services, you should seek advice.
Objecting to guardianship
You cannot prevent a guardian being appointed under section 7 of the MHA, but your nearest relative can object. Before applying for you to be placed under guardianship, an AMHP must consult your nearest relative, as long as this is reasonably practicable and would not involve unreasonable delay. If your nearest relative objects, the AMHP cannot apply for you to be under guardianship without taking legal proceedings to remove (displace) your relative from acting as nearest relative.
The Mental Health Act contains rules for deciding who your nearest relative is. If you do not wish this person to act as your nearest relative, you can apply to the County Court [in the UK] to remove (displace) this person and to appoint someone else. However, you would need to show a good reason why the person who is nearest relative under the rules is unsuitable to act as such, or is not physically or mentally capable. You might need help from a legal adviser to do this.
Guardianship lasts for up to six months and can be renewed: initially for a further six months, and then for a year at a time.
If you have been placed under guardianship, you can apply to the Mental Health Tribunal for discharge from guardianship.
Your nearest relative can also discharge you from guardianship, unless he or she has been displaced (see above), in which case he or she can apply to the tribunal instead.
The local social services authority can also discharge you from guardianship at any time.
The guardianship will end automatically if you are detained in hospital under section 3 of the MHA.
Powers of attorney / Lasting POA
Presently, a person cannot make a lasting power of attorney (or ‘enduring powers of attorney’ as they are otherwise known) if that person lives in Jersey.
In Jersey an alternative to guardianship is ‘Curatorship’ which is defined below.
What is a curator?
A curator is someone appointed by the Royal Court under the Mental Health (Jersey) Law, 1969 to conduct the affairs of someone found by the court to be an interdict.
Who is interdict?
An interdict is a person who is incapable of managing and administering his or her own property and affairs by reason of mental disorder or of addiction.
How is a curator appointed?
When a person is or has been admitted to a hospital or a mental nursing home or received under guardianship and no person has been deemed to have been appointed to manage and administer the affairs and property of that person, or where the person’s doctor thinks that person is incapable by reason of mental disorder or addiction or some other reason of managing and administering his property and affairs and no person has been appointed curator, the Public Health Committee must report this to the Attorney-General.
The Attorney-General then applies to the Court for the appointment of a curator.
What happens before court?
Following receipt of an application from the Attorney-General, the Court will fix a day for the hearing. The Attorney-General and/or the Court may consider it appropriate that persons such as the family doctor or a relation be summoned to appear before the Court at the hearing to provide assistance.
What happens in court?
At the hearing, the Court may direct that any person summoned shall be heard on oath. It is not necessary for the interdict to be present or represented at the hearing.
If the Court is satisfied that a curator should be appointed one is appointed. The person nominated to be the curator will need to take an oath (as set out in the Law) before commencing his functions.
What are the powers of a curator?
A curator has the power to do or arrange for all such things to be done in relation to the property and affairs of the interdict as appear to the curator to be necessary for the maintenance of the interdict. This will include making provision for other persons for whom the interdict might be expected to provide including the family of the interdict and for the management and administration of the interdict’s property and affairs.
In particular, a curator may arrange for or authorise the carrying on by a suitable person of any profession trade or business of the interdict, the dissolution of a partnership of which the interdict is a member, the carrying out of any contract entered into by the interdict and the reimbursement out of the property of the interdict of money applied by any person in payment of the interdict’s debts.
Can a curator buy or sell real estate for the interdict?
A curator may with the approval of the Court sell or acquire property on behalf of the interdict if he thinks it is appropriate.
Does a curator have to ask the court’s permission to exercise his powers?
A curator must apply to the court for its consent before he may:
- Sell or charge the interdict’s property;
- Acquire property for the interdict;
- Conduct legal proceedings in the name of the interdict; or
- Exercise any power vested in the interdict.
The Court will then appoint two Jurats to examine the application, and if they agree that the proposed action is necessary they provide the curator with their written consent. The curator may then proceed to carry out his proposals.
How are the interdict’s accounts and records administered?
It is the duty of a curator to deliver to the Judicial Greffier, within 90 days of his appointment, an inventory of all the property, real and personal, of the interdict. In every subsequent year accounts in connection with the management and administration of the property and affairs of the interdict during that period of twelve months must be prepared and delivered to the Judicial Greffier. The inventory and accounts must be verified by an affidavit sworn by the curator before an Advocate, a Notary Public or Jurat of the Royal Court. All bank accounts, share certificates etc. must be re-designated in the name of the curator, who will hold the accounts on behalf of the interdict.
How does a curatorship come to an end?
There are three ways in which a curatorship may come to an end: A curator will cease to hold office on the death of the interdict. The management and administration of the property and affairs of the interdict will then be the responsibility of the legal personal representative of the interdict. The curator must notify the Judicial Greffier immediately of the interdict’s death and within 30 days deliver the final accounts verified by affidavit. All books, papers and other documents and all monies held must be delivered to the legal personal representative of the interdict.
In the event of the interdict subsequently being able to manage and administer his/her own affairs, the interdict may apply to the Court to end the curatorship and, if successful, the curator shall cease to hold office.
If a curator delivers his resignation in writing to the Court, through the Attorney-General, the Court will then need to appoint another person as Curator for that interdict and the procedure will be as before.
Does the curator receive payment for his services? Are there any ongoing costs involved?
A curator is entitled to receive by way of remuneration a percentage of the interdict’s gross annual income in accordance with scales fixed by rules of the Court. Where the curator requires the assistance of a professional adviser the charges of that adviser can be paid out of the interdict’s property. A curator will also be entitled to expenses incurred in connection with the administration of the interdicts.
Capacity In Specific Domains
Marriage and divorce
No Jersey law prevents the marriage of a person living with dementia. There is no such provision in Article 2 (headed “General restrictions on marriage”) or anywhere else in the Marriage and Civil Status (Jersey) Law 2001.
However, marriage is a contract and we believe that, subject to our comments regarding Contractual capacity, it could be declared null and void at the instance of the person living with dementia (or more likely his or her legally appointed guardian) on the ground that he or she did not have sufficient mental capacity at the time of the marriage to understand the nature of the marriage contract and that his or her spouse was aware of the incapacity. However, we feel that any responsible church minister, registrar or other person authorised to conduct a marriage ceremony would wish to be satisfied beforehand that both parties did have such understanding.
The Public Elections (Jersey) Law 2002 contains no provision preventing a person living with dementia from voting at public elections. The only persons expressly disqualified from voting are persons in prison following their conviction of an offence.
In Jersey a will is voidable if the Royal Court is satisfied on the evidence that the testator did not have sufficient mental capacity. When Jersey wills were written in French they often commenced with a declaration by the testator that he was saint d’esprit. In several such wills cases the Royal Court has essentially sought to ascertain whether the testator was suffering from a disease of the mind which clouded his judgment and prevented him from making rational decisions.
The action to have a will declared void must be brought within a year and a day of the date of probate of a will of movable property or the date of registration in the Public Registry of a will of immovable property.
Jersey’s law of contract is not statutory, and has to be ascertained largely from precedent, ie. decisions of the Royal Court. Unless there is an earlier Royal Court judgment directly in point, the Royal Court judges will seek guidance from commentators on Norman customary law, from the European civil law (originating principally in Roman law), as expounded in particular by Pothier in his many-volumed treatise on Obligations, and increasingly, where no ready answer is available, from modern English and French law. There is uncertainty regarding the Jersey law of contract and there has been much debate about the need for it to be codified.
However, subject to the caveat that there is no certainty what the Royal Court will decide in such a case, we take the view that a Jersey contract is likely to be declared null and void at the instance of one of the parties (or his or her legally appointed guardian or the personal representatives of a deceased person living with dementia) upon proof on a balance of probabilities that he or she did not have sufficient mental capacity at the time the contract was entered into and that the other party was aware of this. That would be the position under English law and, as we understand it, modern French law.
Under the Criminal Justice (Insane Persons) (Jersey) Law 1964 where an accused person is on trial for an imprisonable offence the Court may return a special verdict that he is not guilty of the offence by reason of insanity and may order him to be detained during Her Majesty’s pleasure. There has been some Jersey case law in the last fifteen or so years which has sought to determine the meaning of “insane” in the context of this law.
In the case of a murder charge the Homicide (Jersey) Law 1986 introduced to Jersey the defence of diminished responsibility. An accused who has been found to have committed or been involved in a killing will be acquitted of murder but convicted of the lesser crime of manslaughter if he proves to the Court that he “was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired [his] mental responsibility for [his] acts and omissions in doing or being party to the killing”.
We do not know of any statutory or common law affecting the position of people with dementia who commit lesser offences.
Future Legislation: Introducing a Capacity & Self-Determination Law for Jersey
Although there are various States of Jersey policies and aspects of existing Jersey law that are relevant in this context, currently Jersey does not have specific legislation to protect someone whose decision-making has become impaired.
Therefore, a new Law, the Capacity & Self-Determination Law, has been drafted to safeguard the dignity and wellbeing of people who may not have the capacity to make decisions for themselves. The new Law has been developed with regard both to modern standards in clinical practice and to legislation and case law in Jersey and England. In addition, the new Law has been developed alongside the new Mental Health Law.
The new Capacity and Self-Determination Law in Jersey was passed in September 2016. The new Capacity and Self-Determination Law (2016) will replace the system of curatorship (by the appointment of delegates in particular circumstances) and will introduce new protections, which are designed to ensure that people are enabled, so far as possible, to determine that their care and treatment are carried out in accordance with their own wishes.
The new Law would apply toanydecision affecting a person who may not have capacity. So the new Law may apply to decisions about how a person will be cared for and the medical treatment they will receive. It will also apply to the day-to-day decisions about how people live their lives and manage their finances.
The new Law will provide a legal framework for assessing whether a person has capacity to make a particular decision and, where they lack capacity, a process to ensure that any decision made for the person is made by appropriate individuals and in the person’s best interests.
The new Law will have a focus on supporting decision-making by the person affected, enabling them to make advance decisions about their future care or treatment in the event that they may lose capacity and to appoint people to make decisions on their behalf with regard to health, welfare and financial matters.
The Capacity & Self-Determination Law will look to establish appropriate safeguards for people who lack capacity, so that they are only deprived of their liberty when that is necessary and in their own best interests. The Law will ensure that individuals can be detained only when it has been properly authorised. There will also be the opportunity to challenge this authorisation. Human rights principles are particularly relevant in this area and there have been a number of important judgments delivered by the European Court of Human Rights and the Supreme Court in England on the subject, which the new Law reflects. The new Law will provide protection, not only for individuals who may lack capacity, but also legal protection for those who may need to make decisions in the best interests of the individual. Awareness and understanding of the new Law among service users, service providers and professionals, in all walks of life, will be vital.
Tests within the new Law are based on the principles of the UK’s Mental Capacity Act 2005 and are aimed at achieving better and more consistent decision-making. The new Law will provide that someone’s capacity to make a decision for themselves should be assessed using the two-stage test of capacity:
- Does someone have an impairment of the mind or brain, or is there some disturbance in the way their mind or brain works?
- Does that impairment or disturbance mean that the person is unable to make a particular decision at the time it needs to be made?
If the answer to both questions is yes, then the person will not have capacity to make the particular decision at the particular time. Otherwise, they should be presumed to have capacity to make the decision.
If an individual is assessed not to have capacity, under the new Law a decision can be made in their best interests with regard to the following:
- 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/she will, when that is likely to be;
- the person's past and present wishes and feelings, which may include any relevant written statements made before he/she lost capacity;
- the beliefs and values that would be likely to influence his or her decision; and
- other factors that he/she would be likely to consider if he/she were able to do so.
Where possible, the decision-maker should take into account the views of the individual as well as:
- anyone named by the individual;
- anyone engaged in caring for the individual or interested in their welfare;
- anyone appointed pursuant to a lasting power of attorney (LPA) made under the new Law;
- anyone appointed by the Royal Court to handle their affairs.
The new Law will include provision for LPAs which will need to conform to certain requirements and be registered by the Judicial Greffe in order to have legal effect. Presently, a person cannot make a lasting power of attorney (or ‘enduring powers of attorney’ as they are otherwise known) if that person lives in Jersey. The proposed LPA provisions in the new Law will open up this facility to Jersey residents.
A person will be able to appoint another person(s) to make decisions on their behalf if they lose capacity. There will be two types of LPA, which can be performed either both by the same person or by different people acting alone or jointly, relating to:
a. health and welfare – this would include making decisions about things like their daily routine (e.g. eating and what to wear), medical care, moving into a care home and life-sustaining treatment
b. property and affairs – this would include making decisions about money and property, such as paying bills, collecting benefits and selling assets such as the person’s home
The new Law will enable a person to make a decision to refuse treatment if they should lose capacity to give (or refuse) consent in the future. Where an Advanced decision to refuse treatment(ADRT) concerns treatment that is necessary to sustain life, strict formalities must be complied with in order for the advance decision to be applicable. Currently, although there is legal precedent for advance decisions of this nature, Jersey lacks a clear and accessible legal framework for their use. The effect of a valid ADRT should be the same as a decision that is made by a person with capacity to refuse treatment, so medical professionals will be required to act in accordance with it.
There will be situations in which a person loses capacity to make a decision for themselves and has not appointed an attorney to make a decision for them, whether about their care and treatment or property and affairs. In such instances, the new Law will give express powers to the Royal Court to make decisions on behalf of an individual who lacks capacity and the power to appoint someone as “a delegate” – which is similar to an LPA, but rather than giving lasting powers, the appointment of a delegate is limited in terms of the scope of the decisions they can make and the length of time they can do it for, as ordered by the Court.
Under the new Law restraint is defined as the use or threat of force where a person who lacks capacity resists or objects, and any restriction of liberty or movement whether or not the person resists. So it may include a situation either where a carer physically restrains a person from doing something or tells them that they will do so if they try. Acts of restraint are not permitted except in specific circumstances described in the Law, for example in order to prevent harm to the person being restrained.
The new Law will set out a framework for making Capacity and Liberty (CAL) assessments which will involve a registered care professional assessing whether a person has the capacity to consent to proposals made for their treatment and, if not, whether it is necessary for those arrangements to involve a significant restriction on their liberty (ie. measures applying to a person on a regular basis such as limiting a person’s access to a place or controlling or limiting a person’s contact with others). This would likely be performed alongside assessments of long term care needs or the creation of care plans. Where CAL assessments confirm that a significant restriction on liberty is necessary the Minister for Health and Social Services could authorise it. An authorisation would allow a care provider to impose one or more significant restrictions on someone’s liberty for a limited period of time, in general this would be for a maximum of 12 months with the option to renew the authorisation for a further period of 12 months. In the absence of a CAL authorisation, significant restrictions on liberty may only be imposed for the period during which a CAL assessment is being carried out under authorisation by the Minister. Alternatively, a restriction can be imposed by the Court or to facilitate the provision of life sustaining treatment. The system for challenging a CAL authorisation would be similar to that for challenging compulsory detention under the new Mental Health Law through the Mental Health Review Tribunal.
The Law will create a new offence to cover wilful neglect and abuse that applies to the treatment of people in care homes, or provided with domiciliary care or supported living arrangements.
The new Law will enable the Minister to publish a code of practice to accompany the new Law, providing guidance to all those working with and/or caring for a person who lacks capacity, including family members, professionals and carers. It may, in particular, provide guidance about the circumstances that may amount to a deprivation of liberty.
Last Updated: Wednesday 08 February 2017