Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department.

  • Great Britain. Lord Chancellor's Department.
Date:
1997
Catalogue details

Licence: Open Government Licence

Credit: Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department. Source: Wellcome Collection.

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    without capacity and poses a certain amount of risk for the carer in that they may have little or no legal basis for their actions. The Law Commission recommended that this informality of decision-making should remain and that there should not be undue recourse to the courts. They did, however, suggest that these decisions be put in a legal context which gave clarity for the carers and adequate protection for those without capacity. The Law Commission recommended that it should be lawful “to do anything for the personal welfare or health care of a person who is, or is reasonably believed to be, without capacity in relation to the matter in question if it is in all the circumstances reasonable for it to be done by the person who does it.”? Four concepts are included in this paragraph: the first is whether the action undertaken was reasonable; the second is whether it was reasonable for that particular person to undertake the action. The third concept is whether the decision-maker reasonably believes that the person concerned lacked capacity. The fourth concept is a liability of a person who makes a decision in accordance with a general authority. The Law Commission recommends that decisions made in accordance with the requirements of the general authority should be lawful. If a person makes a decision on behalf of a person without capacity in accordance with the general authority then he will not face civil liability — for example, in relation to the tort of trespass to person, or assault as a result of the decision. The Government seeks views on whether the definition of the general authority is appropriate. Q12. Is the Law Commission definition of the general authority satisfactory? If not, how should it be amended? Capacity to contract The common law already provides that where goods or services which are “necessaries” are supplied to a person with a disability then, even if the supplier knew or ought to have known of the disability (and therefore cannot enforce the contract itself) that supplier has the right to recover a reasonable price'”. The Law Commission recommended incorporating the common law principle of ‘necessaries’ in their draft Bill. This would mean that where necessary goods he or she should pay a reasonable price for them. This enables people without capacity to be provided with the basic goods and services they might otherwise be deprived of, with the safeguard that the price charged must be reasonable. The Government accepts this recommendation. The Law Commission recommended that payment might be made in a number of ways: a carer might pay using the person without capacity’s money; a carer might pay and then claim from the person without capacity; or a promise might be made on behalf of the person without capacity to pay at a later date. 9 Law Com 231, para 4.4. 10 See also the Sale of Goods Act 1979, s3(2) which gives the rule statutory form in relation to goods.