Public Guardian v DA [2018] EWCOP 26

"This judgment concerns two test cases brought by the Public Guardian, by applications made under s.23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney ('LPAs'). The first concerns words relating to euthanasia or assisted suicide, whereas the second concerns words as to the appointment of multiple attorneys. Although the substance of the issues to which the words are directed is very different in the two cases, there is considerable overlap in the legal argument, the active parties were the same in the two sets of proceedings (the Public Guardian and the Official Solicitor) represented by the same counsel, and it is convenient to consider both cases in one judgment."

ICLR

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[2018] WLR(D) 608

Court of Protection

Public Guardian v DA and others

[2018] EWCOP 26

2018 May 9; Sept 13; Oct 5

Baker LJ

Mental disorder— Lasting powers of attorney— Validity— Validity of words used in lasting powers of attorney— Whether words directing attorney to bring about donor’s death effective— Whether appointment of multiple attorneys in LPAs valid— Mental Capacity Act 2005 (c 9), ss 9(2)(a)(3), 10, 11(7)(c)(8), 23, Sch 1, para 11

In two series of test cases the applicant sought, under section 23 of and paragraph 11 of Schedule 1 to the Mental Capacity Act 2005, determinations as to the validity of words used in lasting powers of attorney (“LPAs”) relating (i) to euthanasia or assisted suicide and (ii) the appointment of multiple attorneys, and whether it was appropriate to register the LPAs as drawn, with amendments, or whether the instrument should not be registered at all. The parties were agreed that the effect of section 11(7)(c) and (8) of the 2005 Act was to permit an LPA to include an express provision authorising an attorney to give or refuse consent to the carrying out or continuation of life-sustaining treatment, subject to any conditions or restrictions. Further, there was a substantial measure of agreement, inter alia, that: (a) if an LPA contained an instruction requiring the attorney to act in a manner that was inconsistent with the 2005 Act or the general law, it would generally be ineffective as part of the LPA; (b) if the words used in a “preference” were purely precatory, then that expression of a wish could not prevent the instrument from operating as a valid LPA, even if the wish were not capable of being given effect within the confines of the attorneys’ current powers; (c) equally, words in “preferences” should not be considered to be “ineffective as part of an LPA” if they were capable of providing assistance to the attorneys as to how they should seek to exercise their powers, notwithstanding that the expressed wishes went beyond what the attorneys were permitted to do under the LPA; and (d) an attorney could not use an LPA as a basis for carrying out an illegal act so that a “preference” such as an instruction to end a donor’s life, or to assist in that process, which would on its face be a criminal offence should generally be treated as ineffective as part of an LPA.

On the applications—

Held, applications granted. (1) An instruction or preference in an LPA directing or expressing a wish that an attorney should take steps to bring about the donor’s death was instructing or encouraging someone to commit an unlawful act and therefore ineffective. In order to ensure that the donor’s autonomy was fully respected an instruction was a direction in mandatory terms wherever it appeared on the form. Thus a stipulation in the “preferences” box that was clearly mandatory should be interpreted as an instruction; equally, a provision in the “instructions” box might be couched in terms that made it clear that it was intended to be a preference. Instructions and preferences predicated on a change in the law were ineffective. The ways in which the law could be changed in this field were so many and varied that permitting an LPA to be registered when containing an instruction or preference as to the attorney’s actions should the law change would lead to uncertainty and confusion. In those circumstances the right course was to declare all such provisions, whether instructions or preferences, ineffective. In each of the first series of test cases the donor had included in the LPA either an instruction or a preference that the attorney should make the necessary arrangements which would bring about death. As a result all of the provisions in those cases were ineffective and should be severed (paras 27–29, 42).

(2) The second series of cases concerned the appointment of attorneys in terms which were said to be inconsistent with the statutory provisions about such appointments. The relevant statutory provisions were set out in section 10 of the 2005 Act and in particular subsections (3) to (5). The three options provided for in section 10(4) were exhaustive and if an instrument purported to appoint the attorneys to act on a different basis to those prescribed by the subsection then it did not comply with section 10. Consequently, under section 9(2)(a), no LPA was created and, under section 9(3), the instrument conferred no authority at all. It followed that where the appointment of the attorneys was, under section 10(4)(c), to act jointly in respect of some matters and jointly and severally in respect of others, it was essential that the donor identified the decisions that were to be taken jointly. Under section 10(5), a failure to do so would lead to an assumption that the attorneys were appointed act jointly. Since the court was required to construe the 2005 Act in a way which gave as much flexibility as possible to donors to set out how they wished their affairs to be dealt with the wording of the instrument was more important than the boxes in which the wording appeared. In the absence of evidence to the contrary, where there was an internal inconsistency in an LPA between the way in which the donor had ticked the box in section 3 of the form and the detailed instructions contained in section 7, it was the latter which should take precedence. Since there was nothing in the 2005 Act to prevent the donor imposing all kinds of restrictions upon the exercise of the attorney’s powers there was nothing inherently objectionable where an LPA required the attorney to obtain the consent of a third party before acting. Such restrictions were consistent with the underlying principle that respect must be given wherever possible to the donor’s autonomy (paras 43, 44, 45, 47).

Dicta of Nugee J in Miles v Public Guardian [2015] COPLR 676, para 19, Ct of Protection considered.

Thomas Entwistle (instructed by Public Guardian) for the Public Guardian.

David Rees QC (instructed by Official Solicitor ) as advocate to the court.

The respondents did not appear and were not represented.

Reported by: Jeanette Burn, Barrister

Essex

39 Essex Chambers have kindly agreed for the following summary to be reproduced below. The remainder of the newsletter can be read here: 39 Essex Chambers, 'Mental Capacity Report' (Issue 89, October 2018).  

Euthanasia and other impermissible directions

The Public Guardian v DA and others [2018] EWCOP 26 (Baker LJ)

Lasting powers of attorney – registration

In this case Baker LJ considered a number of different issues that arise seemingly frequently concerning the registration of lasting powers of attorney.

Of general interest are those that concern the inclusion in a power of preferences or instructions that direct or encourage assisted suicide or euthanasia.

Schedule 1 of the MCA is concerned with the registration of LPAs. Paragraph 11 requires the Public Guardian to apply to the court for a determination under section 23(1) if it appears that the power contains a provision that would be ineffective as part of a lasting power of attorney.

Sub paragraph (4) and (5) of paragraph 11 enables the court to sever any provision that would be ineffective or would prevent the instrument acting as a valid LPA.

The LPAs in question either contained instructions or preferences to the effect that in certain circumstances the attorney is to take or encourage steps to be taken that would bring about the donor’s death. At paragraph 27, Baker LJ held:

I agree with the combined view of the Public Guardian and the Official Solicitor that an instruction or preference in an LPA directing or expressing a wish that an attorney takes steps to bring about the donor’s death is instructing or encouraging someone to commit an unlawful act and therefore ineffective.

Incidentally, at paragraph 28, the judge determined an issue of general relevance, namely how the court should interpret a preference set out in the instructions box on the form and vice versa. He held:

On the first issue between the parties, I prefer Mr Rees’ argument. Applying Nugee J’s approach requiring flexibility to ensure that the donor’s autonomy is fully respected, I agree that an instruction is a direction in mandatory terms wherever it appears on the form. Thus, a stipulation in the “preferences” box that is clearly mandatory should be interpreted as an instruction. Equally, a provision in the “instructions” box may be couched in terms that make it clear that it is intended to be a preference.

In some of the LPAs instructions or preferences had been given that would only come into effect if the law changed to make assisted suicide lawful. Baker LJ held at paragraph 29:

On the second point, however, I accept Mr Entwistle’s submission that instructions and preferences predicated on a change in the law are ineffective. It seems to me that the ways in which the law could be changed in this field are so many and varied that permitting an LPA to be registered when containing an instruction or preference as to the attorney’s actions should the law change would lead to uncertainty and confusion. Towards the end of oral submissions, Mr Rees suggested that a clause which stipulated that “if at any point it becomes permitted as a matter of English law for my attorney to make a decision that my life should be terminated in certain circumstances and those circumstances arise, then I express a wish for my attorney to make a decision that terminates my life” would meet the objections raised on behalf of the Public Guardian. But in the event that Parliament at some future point permits an attorney to take steps to terminate the donor’s life, any change in the law is likely to be subject to detailed statutory provisions and guidance in a Code of Practice, the terms of which cannot at this stage be predicted. In those circumstances, for this court to give the green light to the inclusion in LPAs of any such provision at this stage would be likely to cause uncertainty and confusion. In those circumstances, the right course is to declare all such provisions, whether they be instructions or preferences, ineffective.

In the result, all the provisions under review were held ineffective and severed, see paragraph 42.

The second batch of cases concerned more mundane matters.

Section 10(4) of the Act requires a power to appoint attorneys to act:

(a) jointly,
(b) jointly and severally, or
(c) jointly in respect of some matters and jointly and severally in respect of others.

These are the only ways attorneys can be appointed and section 9 (3) provides that an instrument that does not comply with section 10 confers no authority.

In one set of cases, the power contained the following words:

If my spouse is capable of acting, my attorneys other than my spouse shall not act in any manner unless my spouse is unable to act on their own in that matter.

The court held that these words were inconsistent with a joint and several power and should be severed, see paragraph 52.

In another case, these words occurred:

The Primary Power of Attorney is Mrs [JR] should she survive her husband and be of sound mind and will be the decision-maker. [The other two attorneys] are secondary PAs should Mrs [JR] not be of sound mind or deceased.

Again, this was held inconsistent with a joint and several appointment and were severed (see paragraph 55). The appropriate result could have been achieved by the donor appointing his spouse as sole attorney and the others as replacement attorneys.

In the last case, the power required the consent of a third party before certain powers could be exercised. This was held to be unobjectionable, see paragraph 58.

It is worth mentioning that Baker LJ at paragraph 9 specifically approved of what District Judge Eldergill had said as follows:

In The Public Guardian’s Severance Applications [2017] EWCOP 10 at paragraphs 45 to 47, District Judge Eldergill compared and contrasted the new terminology in the latest versions of the prescribed forms with the statutory language in s.9(4). He observed:
“45. It is always risky to depart from the statutory language when drafting forms and the adoption of the headings ‘Preferences’ and ‘Instructions’ in the forms introduced by the Amendment Regulations is potentially misleading.
46. The term ‘instructions’ is not synonymous with ‘conditions or restrictions’.
47. Equally, the term ‘preferences’ is not synonymous with ‘best interests’ or a donee’s duty when deciding what is in the donor’s best interests to consider anything written in section 7 of the form concerning the donor’s wishes, feelings, beliefs and values, and the other factors to be considered by their donee(s): see s.4(6) of the 2005 Act.”
I respectfully agree with the district judge’s observations. It may be that those responsible for drafting forms will wish to reconsider these changes in the light of his comments.

Lastly in paragraph 46 of the judgement, Baker J considered a dictum of DJ Eldergill in the above case. He said:

In The Public Guardian’s Severance Application (supra), District Judge Eldergill suggested that there was nothing objectionable in an arrangement which provided that two of the attorneys must always agree on any decision jointly whereas the third could act independently and that it should not be necessary to create two instruments in order to achieve such an objective. Mr Rees acknowledges that the District Judge’s view is consistent with the principle of flexibility but submits that it is contrary to the clear wording of the statute. Although I have not heard a full-contested argument on that point, it seems to me that Mr Rees’ submission is well-founded.


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