Mohammed T. Abou-Saleh

LAW AND THE ELDERLY INCOMPETENT PATIENT 787Although the use of Guardianship is increasing with the elderly(Mental Health Act Commission 7th Biennial Report 8 ), it is stillused infrequently. There were 804 Guardianship cases current at31 March 1998 compared with 335 in 1992. This, however,includes all age groups and mental disorders. There are nostatistics available specifically for the over-65s. Usually thecommon law doctrine of necessity is invoked and this allowsreasonable force to be used where necessary, either to prevent aperson leaving or to restrain him/her for medication or otherreasons. This is likely to be subject to challenge under the HumanRights Act 1998. There is a strong possibility that the Bournewoodcase will be overturned by a decision of the European Courtof Human Rights. This is because, under Article 5, there is a Rightto Liberty and Security of the Person. This states under Article5(4) that:Everyone who is deprived of his liberty . . . shall be entitled to takeproceedings by which the lawfulness of his detention shall bedecided speedily by a court and his release ordered if the detentionis not lawful.For those who lack capacity and are ‘‘detained’’ under commonlaw there is not a mechanism that allows this challenge in Englishlaw.THE NEW ERA OF HUMAN RIGHTSWith the passage of the Human Rights Act 1998 we are entering anew era for the concept of human rights in the UK. With thepartial incorporation of the European Convention of HumanRights and Fundamental Freedoms there is the opportunity forthe citizen to take proceedings against public bodies for allegedbreaches of human rights. Public Bodies would include state andprivate hospitals, social service authorities, doctors and socialworkers who can carry out specific functions under the MentalHealth Act where any of these bodies are carrying out a publicfunction. As appears usual in the legal process, the mechanism bywhich the incapacitated can seek to assert their rights is far fromclear. Yet again it will require the identification of the individualwho will take the proceedings on their behalf.The most relevant Articles to the European Convention ofHuman Rights and Fundamental Freedoms are:. Article 2 enshrines the right to life. This includes the right to beprotected by those who are caring for the vulnerable from risksthat may lead to death.. Article 3 protects the citizen from torture, inhuman ordegrading treatment or punishment.. Article 5 states that there is a Right to Liberty and Security ofthe Person.. Article 6 protects the right to a fair trial when, for example, theCourt of Protection is considering removing a person’s right tocontrol his/her own financial affairs.. Article 8 provides for respect for a person’s home and familylife. This would include decisions about confidentiality ofinformation, where a person lives or with whom he/she hascontact.. Article 12 provides for the right to marry (despite one’s age!).IN CONCLUSIONWith an inadequate legal framework, extensive abuse taking placein many guises, with those working with the elderly often unawareof what the law permits, with the government apparentlyunwilling to legislate, the future looks bleak. The Human RightsAct could and should be about changing our culture. It shouldaffect the way that we conceptualize the exercise of decisions thataffect the rights of the citizen. My fear is that in all other areas ofsociety this may well be the case. However, for the elderlyconfused incapacitated person, who will take on responsibility forthis awesome responsibility?REFERENCES1. Civil Procedure Rules 1998, Rule 21, Statutory Instrument 3132,1998.2. Law Commission. Mentally Incorporated Adults and Decision Making.Consultation Papers Nos. 128–130. London: HMSO, 1993.3. Lord Chancellor’s Department. Who Decides? Making Decisions onBehalf of Mentally Incapacitated Adults. London: HMSO, 1997.4. Law Commission. Mentally Incapacitated Adults and DecisionMaking: An Overview. Paper 119 (May). London: HMSO, 1991.5. Ashton G. Elderly People and the Law. London: Butterworth, 1995.6. A Handbook for Expert Witnesses in Children Act Cases. Family Law2000.7. Department of Health. HSC 1998/122 NHS Executive, 1998.8. Mental Health Act Commission. The Biennial Report 1995–1997.London: The Stationery Office.