Has the Court of Protection (the Court) been over reaching its authority on societies’ most vulnerable adults who lack mental capacity, particularly during the COVID-19 pandemic?
Introduction:
This article explores the ways in which the Government and Courts could together be acting immorally and possibly even unlawfully when it comes to making best interest decisions, very much to the detriment of these individuals and their families.
We cover the role of the Court of Protection and whether it should interfere with the exercise of parental responsibility for adults who lack capacity in particular, but also regarding of interference with the exercise of responsibilities by deputies, those with lasting power of attorney or other “interested persons”.[1]
The article also suggests that the court is using out-dated approaches to informed consent and that the Mental Capacity Act (the Act) may in fact prohibit the use of most experimental medicines, such as “emergency use authorisation” COVID-19 vaccines that it is nonetheless mandating in most cases. These concerns suggest significant safeguarding issues and an urgent need for reform.
The Court of Protection:
Adults who lack mental capacity are particularly vulnerable to arbitrary medical policy, including for vaccination and testing. Never has this been more the case than with regard to Covid-19, due to the coercive approaches that have been taken. To date, and with only one exception, the Court of Protection has mandated the vaccine on all adults who lack mental capacity, often disregarding strong, well-researched and carefully considered objections from close family members, with the small number of recorded cases being the tip of an iceberg. A similar approach has also been taken by the family courts with this often being the case for other vaccines recommended by government.
The sole successful case hinged upon the individual having objected to vaccination prior to losing capacity.[2] This argument is unlikely to protect most who have lost their mental capacity, since many in the general public fail to create a living will making advance decisions to refuse treatment. It also provides no assistance for adults with mental capacity issues who have never attained capacity to make autonomous decisions in the first place.
As a result, the only hope for most parents and others who object to their child or loved one being vaccinated is to ensure that they never get entangled in best interest meetings, the Court of Protection or the Family Courts. Once there, the outcome is almost always inevitable regardless of the opinions and arguments put forward with ‘conviction’ rates similar to a Medieval Star Chamber or something out of the Soviet Union.
There is common ground that parents of children under the age of 18 who agree on decisions about treatment can avoid being subjected to a best interest case in the Court of Protection. This is because s.27 of the Mental Capacity Act (2005) (the Act), prohibits the Court of Protection from interfering with the discharging of parental responsibility in matters not relating to a child’s property.[3] s.3 of the Children Act[4] defines “parental responsibility” for the act as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and their property”.
Where problems occur is when the child becomes an adult at the age of 18. At this point the Court of Protection claims that it has full liberty to interfere in any decision made by a a parent who has an adult child who lacks capacity.
This fails to reflect the family reality however, because the parents of an adult child who lacks capacity will if they choose retain substantial or complete responsibility for them. Yet the Court de facto rides roughshod over any rights that the parents retain. Some go so far as to say that parental rights for an adult child who lacks capacity end entirely on their child’s 18th birthday. As a result, parents who retain caring responsibilities can even be denied access to medical records relevant to the individual’s care. This surely cannot be in anybody’s best interest. It also causes significant difficulty for parents who can end up losing trust in the system that should be there to assist.
This unfortunate state of affairs could however have been caused by a misinterpretation of the law. Statutory provisions with the Act itself appear to prohibit the court from interfering with the exercise of any parental responsibility, regardless of whether the parent’s child is under or over 18 with this being contracted, in our view irrationally, by the Mental Capacity Act 2005 Code of Practice[5] as follows.
The Code of Practice states that “Nothing in the Act permits a decision to be made on someone else’s behalf on any of the following matters: (including) “discharging parental responsibility for a child in matters not relating to the child’s property”.
However, the words “for a child” cannot be found in s.27 of the Act regarding “excluded decisions”, which actually states that the Court cannot make a decision on someone else’s behalf regarding “discharging parental responsibility in matters not relating to a child’s property”. The Act states “not relating to a child’s property” whilst the guidance states “not relating to the child’s property”.
The Court of Protection claims that the government guidance provides the correct interpretation because s.50 of the Act[6] brings the interpretation of “parental responsibility” in line with s.3 of the 1989 Children Act for the purposes of the Mental Health Act,[7] meaning that parental responsibility and therefore parental rights only apply in that context to children under the age of 18.
However, if the statute is read correctly then this cannot also be true for s.27 regarding excluded decisions. This is because the Children Act interpretation of “parental responsibility” is only applied within and therefore only applies to s.50, which relates solely to whether permission is required for an application to the Court.
Had Parliament consented to the Children Act definition of parental responsibility applying to s.27 regarding the jurisdiction of the Court, we would also see it in s.64 (General Interpretation)[8] or in s.27 itself. It is however nowhere to be found in these sections of the Act. As a result, the only possible interpretation of the statute is that Parliament consented to the Children Act definition of parental responsibility applying only to s.50. Therefore, the broadest possible interpretation should be given to “parental responsibility” as it applies to s.27 regarding excluded decisions, including the exercise of parental responsibility for adults over the age of 18 who lack capacity.
We asked the Ministry of Justice for correspondence, documentation or legal advice causing the Code of Practice to be inductive of this new wording. They confirmed that that they do not hold any information and that “Due to the length of time that has elapsed since the Mental Capacity Act Code of Practice was originally published this information is no longer available.” [9]
When considering conflict between legislation and government guidance, our constitution is clear that “the executive (government) cannot change law made by Act of Parliament, nor the Common Law”, as recently confirmed by the Supreme Court in Rule 1 of R Miller v DExEU (2017).[10] This is due to Article.1 of our 1688 Bill of Rights[11], which states, “That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parliament is illegal”. It is therefore unlawful for government guidance to provide an interpretation that cannot be reasonably established by reading the actual words of a statutory provision.
For this reason, government guidance is supposed to be considered hearsay evidence in a court of law. Sadly, this rarely occurs with government guidance often being treated as if it were a body of law. This is despite it being established by the Kings Bench in 1610 with the Case of Proclamations[12] that the law of England is comprised of “common law, statute law, and custom; but the King’s proclamation (which includes government guidance) is none of them” with this definition of the law of England also being recognised by the Coronation Oath.[13]
There is no statute that defines parental rights. It is however set out clearly in Gillick’s case, citing Sir William Blackstone,[14] that parental rights flow from parental responsibilities, which diminish as a child develops competency. What this means is that at Common Law, where a Parent has a responsibility, they should have autonomy to discharge that responsibility without unreasonable interference, with this being the essence of parental rights.
A person’s parental responsibilities and thus parental rights will therefore vary from case to case and as Gillick stated, that there is no universal age at which competency can be said to universally emerge. Therefore, it follows that if a Parent has responsibilities for an adult child who is 18 or above, they must therefore at Common Law retain a right to parental autonomy unless or until they hand over some or all of their responsibility to a responsible third party.
The Mental Capacity Act itself confirms that parents of an adult who lacks capacity do indeed retain responsibility, which can only be parental responsibility in this context. This is because s.44 of the Act[15] causes the parent or other carer of an under or over 18-year-old to be liable for summary or indictable criminal prosecution if they ill-treat or wilfully neglect them whilst they care for them, for which they could also be sued for tort violations such as negligence by a court appointed litigant friend.
This approach to parental responsibility is after all the one taken by health and social services when it suits them, i.e., when parents agree with the ‘advice’ that has been given. This is because parental consent for an adult who lacks capacity will generally be accepted as providing adequate lawful authority for medical treatment except where the parent has what appears to be regarded as the audacity to go against the “responsible body of medical opinion”.
The Court and Parliament should not reasonably fear being excluded from interfering with the discharge of parental responsibility for an individual over 18 who lacks capacity, because that is after all no different to the status quo for arguably more vulnerable children who lack capacity who happen to be under the age of 18. Neither does it render the Court powerless; they continue to have powers under s.15 of the Act[16] to declare that a parent lacks capacity to exercise their parental responsibility, noting of course that s.1(4) of the Act[17] states that “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”. They can also assume authority by convicting a parent under the offences discussed above, set out in s.44 of the Act and the parent can be sued for tort violations.
If this provides sufficient safeguarding for a child under 18 who lacks capacity then it must be sufficient for an adult who is over the age of 18. It also goes without saying that a parent who has taken responsibility for a child from before birth to the age of 18 without interacting with Social Services is highly likely to be competent to continue to care for them into adulthood, if they choose to do so. Such a person is also likely to have more care experience than many professionals in the care sector, with a pair of parents having between them a minimum of 36 years’ experience once their child reaches 18. They will likely know their adult children and care for their best interests better than anybody else ever could with unreasonable interference inevitably causing a general breakdown of trust within the care process that can only be detrimental to their adult child’s best interests.
This parental rights issue could be tested in court or the Code of Practice could be challenged and amended. A campaign could also be had for Parliament to amend s.27 so that it expressly excludes the court interfering in the exercise of parental responsibility for adults 18 and over.
There could also be a campaign to amend s.27 to expressly exclude the Court from interfering with decisions by approved deputies and those with lasting power of attorney. There should be no reason to object to this given that the Court is responsible for overseeing these appointments. If the person is capable of being appointed, then they ought to be provided autonomy to exercise judgement and make decisions. There could also be a strong case for reforming how the court deals with decisions made by other “interested persons” such as spouses and next of kin, where lasting power of attorney is not in place and where there is no disagreement between the parties so as to protect the sanctity of the family unit.
Informed consent:
Next, we come on to the now outdated approach to informed consent being imposed by the Court of Protection and Family Courts when considering the best interests of a person who lacks capacity. The Court’s approach to the material risks of medical treatment, including the risks of not having treatment, appear to involve what could be seen as slavishly following recommendations from doctors who advocate for the “responsible body of medical opinion” known colloquially as “the science”. In reality this is a fancy way of saying that they follow government policy by default; treating people as if they were part of a herd rather than considering the actual best interests of the individual, failing to recognise the autonomy of any “interested persons”.
In doing so the Court will disregard the views of parents, other next of kin, deputies and people with lasting power of attorney and other “interested persons” if they dare to disagree with government policy. This extends to disregarding the views of qualified experts who question the status quo.
Yet the right to petition HM Government and its policy, which must include autonomy to make decisions contrary to policy that do not break the law, is set out clearly in our 1688 Bill of Rights “That it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegall.” with this wording being copied and pasted to form the petitioning clause of USA’s First Amendment.[18] With the right to petition against government policy being considered by our ancestors to be central to the principles of parliamentary democracy; how can it be justice for a court to automatically dismiss the autonomy and rights of “interested persons” and expert witnesses to question government guidance? Can compliance with government policy ever be the sole litmus test of the best interests of the individual?
It was discussed above that government guidance is not law. Therefore, government guidance on medical choices should be treated as hearsay evidence in court to allow interested persons and experts on both sides of the argument have due process of law.[19]
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| The Leading case on Informed Consent. Paragraph 87. Of Montgomery v Lanarkshire |
The second problem regarding informed consent is that the court’s current approach of generally defaulting to “the responsible body of medical opinion”. This reflects an extreme and likely unlawful interpretation of the outdated Bolam Test,[20] which the Supreme Court superseded in 2015 in Montgomery’s case[21] regarding the duties involved in providing informed consent. In this case the UK’s Supreme Court adopted the position taken by the Australian High Court in Rogers v Whittaker,[22] that the test of materiality when considering the risks of having or not having a medical intervention is whether, “in the circumstances of a particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk.” The patient may well carefully consider government guidance on the matter but they are perfectly entitled to disregard it and cannot be found to lack competency due to making an ‘unwise’ decision or by disregarding government policy.
The Common Law law is constructed in this way because its primary aim is protection of the inviolable autonomy of the person. The law recognises that people who have capacity are autonomous and that they therefore have an absolute right to autonomy because this is a fundamental aspect of being a human.
If this correct approach was applied by the Court of Protection in best interest cases and if we recognise the autonomy of the Parent or any other “Interested Person” who have Common Law responsibilities for the person who lacks capacity; then the court ought to consider whether, in the circumstances, a reasonable person exercising responsibility for the person would be likely to attach significance to the risk; be it the parents, next of kin, deputy or lasting power of attorney, etc. This would surely be a better reflection the responsibilities and rights that may exist than the current default position of deferring to the “responsible body of medical opinion”, disregarding the views of any “interested persons” who disagree with government policy.
This test would alter if the person previously had capacity, because there would then be a duty to consider what the person would have been likely to consider had they retained capacity. In either case it ought to be assumed that a “responsible” or “interested person” is better placed than the government to make an assessment of the best interests of a person whom they have caring responsibilities, so long as they retain capacity to care and avoid civil or criminal negligence.
If the courts took this position, finally adopting the principles in Montgomery’s case to best interest cases, prima fascia sworn statements, evidence and expert witnesses would be given greater weight than the hearsay evidence of government guidance. Only then can diverse opinions obtain due process of law with perhaps the courts no longer siding with government policy almost a hundred percent of the time.
It is likely that GP’s, local authorities, carers and the Court default to the now out-dated and therefore unlawful Bolam Test, blindly following what is called “the science”, to avoid risk of liability to themselves more than to further the best interests of the person. Yet clinical negligence will occur if the duties set out in Montgomery’s case are not discharged when providing informed consent on behalf of a person who lacks capacity. This is precisely why the balance in decision making must shift towards “Interested Persons” and parents and spouses in particular. This could be pursued in courts, with those engaged in best interest cases advocating for the principles set out in Montgomery’s case. There should also be a campaign for amended guidance and perhaps statutory reform.
Experimental medicine and capacity:
Now we turn to questions around the lawfulness of the Court of Protection mandating experimental, “emergency use authorisation” medical testing and vaccination on persons who lack capacity. This has occurred despite the Mental Capacity Act making most research projects unlawful for persons who lack capacity.[23]
The Act, for obvious safeguarding reasons, only allows for persons who lack capacity to be subjected to research projects related to an “impairing condition”. This means, “a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), the impairment of, or disturbance in the functioning of, the mind or brain.” Not for a condition that they do not have and may never have that will not have contributed to their lack of capacity. Even if this criterion is met, the research project is only lawful if it cannot be conducted on people who have capacity.
If a research project satisfies this restriction, s.32 of the Act nonetheless requires that “interested persons” are identified and that any research project does not occur or is abandoned if they state that in their opinion the person’s wishes and feelings would be likely to lead to them declining to take part in the project if they had capacity in relation to the matter.
With, “research project” having no express definition in either the 2005 Mental Capacity Act or the 2004 Clinical Trial Regulations, we can only conclude that Parliament consented to the widest possible interpretation based on what we can establish by referring to the Oxford English Dictionary. That “emergency use authorisation” is not part of an approved clinical trial should not therefore mean that the court can ignore this section of the Act in these cases.
Of particular relevance, the UK Health Security Agency is conducting the ongoing, “COVID-19 vaccine surveillance project”[24] with weekly surveillance reports[25] regarding, “emergency use authorisation” COVID-19 vaccines that the government believe to be “required to monitor delivery of the vaccination programme and evaluate its impact on health”. This research project involves “detection and evaluation of possible adverse events associated with vaccination” and “enhanced surveillance of vaccine failure”. with this demonstrating the experimental nature of the vaccine programme.
Whilst the JCVI has concluded that the vaccines are ‘safe and effective’, this is clearly an interim position in connection with the surveillance project, other ongoing research projects and ongoing clinical trials. Indeed, COVID-19 is so experimental that the UK Collaboration on Development Research’s COVID-19 Research Project Tracker lists 15,254 worldwide research projects at this time with over £5.5bn in funding.[26]
It follows therefore that if a research project such as the UKHSA’s Surveillance Project is required to implement “emergency use authorisation” of COVID-19 Vaccines alongside ongoing clinical trials and tens of thousands of research projects worldwide, that a person will be subjected by one degree or another to ongoing research projects if vaccinated. If this is the case, then it must be unlawful for persons who lack capacity to be subjected to the vaccine programme.
The Medicines for Human Use (Clinical Trials) Regulations 2004 set out Parliament’s position on consent for clinical trials and this should be taken into account when considering research projects or medicines under “emergency use authorisation” subject to ongoing clinical trials. Part 2 of Schedule 1[27] states that “Clinical trials shall be conducted in accordance with the ethical principles that have their origin in the Declaration of Helsinki[28], which can be considered a modern version of the Nuremberg Code.”
Part 5 of Schedule 2[29] then covers conditions and principles which apply to clinical trials in relation to an incapacitated adult. Amongst other things they require that the legal representative of the person provides informed consent on behalf of the incapacitated adult, which can only mean discharging the duties set out in Montgomery’s case. They must also, without detriment be informed of the right to withdraw from a trial at any time.
Conclusion:
This would not be the first time that the Court of Protection has been found to exceed its authority. Caroline Hopton, Simon Mottram, and Rosa Monckton successfully challenged the Court’s policy of a presumption that deputyships will only be approved in the ‘most difficult’ cases.[30] No such presumption can be found anywhere in the Act and guidance cannot lawfully create any presumption not found in Common Law or express statutory provision. This is however precisely what the court did until challenged by mothers who bravely challenged the Court in their children’s best interest. In this instance the Court agreed that the Mental Capacity Act Code of Practice (government guidance)[31] should be amended accordingly.
That such misinterpretations of the law, as we believe them to be could have influenced court decisions for decades without challenge seems astonishing. This could in part be due to the court sitting in private with there being no right to elect trial by jury, more transparency and accountability is required. The consequences have included untold stress and suffering for the individuals and their families emphasising the real and urgent need to bring this detrimental state of affairs to an end.
Arguments made in this article suggest that further amendments should be made regarding parental responsibility, rights and autonomy, informed consent and research projects, but this may only be scraping the surface of the reform that is required. You may also consider making provision for yourself, creating your own will with provision for a Lasting Power of Attorney. In it can also specify that you want no vaccines under any circumstances. You can also expressly state that for any other treatment or management that you do not yet know about nor can imagine, you can affirm that your attorneys have absolute jurisdiction and that you do not wish to have their views over-ridden by “Best Interest” meetings and Court of Protection hearings.
[1] “Interested Persons” a term used throughout this article is defined for the Mental Capacity Act (2005) in s.185 https://www.legislation.gov.uk/ukpga/2005/9/schedule/A1/part/13/crossheading/interested-persons
[2] SS v Richmond [2021] EWCOP 31 https://www.bailii.org/ew/cases/EWCOP/2021/31.html
[3] S.27 Mental Capacity Act (2005) “Excluded decisions; Family relationships etc.” https://www.legislation.gov.uk/ukpga/2005/9/contents
[4] s.3 Children Act (1989) “Meaning of “parental responsibility”.
https://www.legislation.gov.uk/ukpga/1989/41/section/3
[5]2 Department for Constitutional Affairs (2007) “The Mental Capacity Act 2005 Code of Practice, Third Impression” Department for Constitutional Affairs
https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
[6] s.50 Mental Health Act (2005) “Applications to the Court of Protection” https://www.legislation.gov.uk/ukpga/2005/9/section/50
[7] Children Act 1989 https://www.legislation.gov.uk/ukpga/1989/41/section/3
[8] s.64 Mental Health Act (2005) “General Interpretation” https://www.legislation.gov.uk/ukpga/2005/9/section/64
[9] WhatDoTheyKnow “s.27 Mental Capacity Act.” https://www.whatdotheyknow.com/request/s27_mental_capacity_act
[10] R Miller v DExEU [2017] UKSC 5
https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf
[11] Bill of Rights [1688] https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction
[12] Case of Proclamations (1610) : [1610] EWHC KB J22 https://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html
[13] s.III “Form of Oath and Administration thereof” Coronation Oath Act (1688) https://www.legislation.gov.uk/aep/WillandMar/1/6/section/III
[14] Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 https://www.bailii.org/uk/cases/UKHL/1985/7.html
[15] s.44 Mental Health Act (2005)
Ill-treatment or neglect www.legislation.gov.uk/ukpga/2005/9/section/44
[16] s.15 “Power to make declarations” Mental Capacity Act (2005) https://www.legislation.gov.uk/ukpga/2005/9/section/15
[17] s.1 Mental Capacity Act (2005)
https://www.legislation.gov.uk/ukpga/2005/9/part/1/crossheading/the-principles
[18] The Petitioning Clause of the 1st Amendment copies wording from art.5 and Art.13 of England’s 1688 Bill of Rights, that itself reflected ancient rights and liberties established long before England’s ‘Glorious Revolution’. https://en.wikipedia.org/wiki/Right_to_petition_in_the_United_States#Historic_roots
[19] In 1855, the US Supreme Court ruled that the words “Due process of law” found in the US Constitution’s 5th & 14th Amendments were intended to have the same meaning as “By the law of the land” in Magna Carta. https://en.wikipedia.org/wiki/Due_Process_Clause
Murray v. Hoboken Land, 59 U.S. 272 (1855) https://supreme.justia.com/cases/federal/us/59/272/
[20] Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 www.swarb.co.uk/bolam-v-friern-hospital-management-committee-qbd-1957
[21] Montgomery v Lanarkshire Health Board [2015] UKSC 11
https://www.supremecourt.uk/cases/docs/uksc-2013-0136-judgment.pdf
[22] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479(19 November 1992) http://www.paci.com.au/downloads_public/court/12_Rogers_v_Whitaker.pdf
[23] s.30-34 “Research” Mental Capacity Act (2005) https://www.legislation.gov.uk/ukpga/2005/9/part/1/crossheading/research
[24] UK Health Security Agency COVID-19 Post-implementation vaccine surveillance strategy https://www.gov.uk/government/publications/covid-19-vaccine-surveillance-strategy
[25] UK Health Security Agency “COVID-19 vaccine weekly surveillance reports; Data on the real-world effectiveness and impact of the COVID-19 vaccines.” https://www.gov.uk/government/publications/covid-19-vaccine-weekly-surveillance-reports
[26] COVID-19 Research Project Tracker by UKCDR & GloPID-R https://www.ukcdr.org.uk/covid-circle/covid-19-research-project-tracker/
[27] The Medicines for Human Use (Clinical Trials) Regulations 2004, Part 2 of Schedule 1 “Conditions and principles which apply to all clinical trials” www.legislation.gov.uk/uksi/2004/1031/schedule/1/part/4/made
[28] World Medical Association “Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects” www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/
[29] The Medicines for Human Use (Clinical Trials) Regulations 2004, Part 5 of Schedule 1 “Conditions and principles which apply in relation to an incapacitated adult” https://www.legislation.gov.uk/uksi/2004/1031/schedule/1/part/5/made
[30] Learning disability today “Should parents make care decisions once their child reaches adulthood?” www.learningdisabilitytoday.co.uk/2019/should-parents-make-care-decisions-once-their-child-reaches-adulthood
[31] Mental Capacity Act Code of Practice
https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
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