Mental Capacity Alison Douglass

277 Pages·2016·10.08 MB·English

Mental Capacity
Updating New Zealand’s Law and Practice
Alison Douglass
A Report for the New Zealand Law Foundation
This report may be cited as:

A Douglass Mental Capacity: Updating New Zealand’s Law and Practice
(Report for the New Zealand Law Foundation, Dunedin, July 2016)
http://www.lawfoundation.org.nz
Mental Capacity

Updating New Zealand’s
Law and Practice

Alison Douglass
New Zealand Law Foundation
2014 International Research Fellow
Foreword
Senior Judge Denzil Lush
Before I became a lawyer I read history as an undergraduate and post-graduate, and have
always approached the development of the areas of the law in which I specialise from a
chronological perspective. I find it’s the best way of understanding the trajectory along which
ideas are moving when confronted by various forces.

The Court of Protection, of which I was the last Master and the first Senior Judge, has a
venerable history dating back to about 1270, but it has never been the quiet backwater that
most people assume it is. For the last two hundred years it has been on the cutting-edge of
public policy. As Alison Douglass mentions in Chapter 1C of this report, since the great
Reform Act 1832, when, to all intents and purposes, Britain first became a modern
parliamentary democracy, we have changed our mental capacity legislation at least once in
a generation.

England and Wales last looked properly at mental capacity a generation ago, during the
early 1990s. In April 1991 the Law Commission published a consultation paper, Mentally
Incapacitated Adults and Decision-Making: An Overview, which provided an overview of this
area of the law, assessed the necessity for reform, and explored the best ways forward. This
paper discussed and approved New Zealand’s recent legislation, the Protection of Persons
and Property Rights Act 1988 (PPPR Act). The Law Commission produced three further
consultation papers followed by a final report, Mental Incapacity, in 1995. The report
contained a draft Mental Incapacity Bill, which was shelved for ten years before finally being
enacted as the Mental Capacity Act 2005.

Alison Douglass is right when she says that “The PPPR Act is in need of review”. It is nearly
thirty years old and needs to be updated to reflect contemporary thinking about disability,
human rights and cultural diversity. She is complimentary towards our Mental Capacity Act
2005. It is well-drafted, concise legislation and good to work with. It clearly explains the key
concepts of “capacity”, and “best interests” (understood as will and preferences), which are
central to understanding the law. The Code of Practice has also been pivotal to the
implementation of the Act by the wide range of people who use it.

But our legislation too, is in need of review. It is not fully compatible with the Convention on
the Rights of Persons with Disabilities, which was adopted by the General Assembly of the
United Nations on 13 December 2006, and ratified by New Zealand on 25 September 2008
and the United Kingdom on 8 June 2009. Abolishing adult guardianship law, as suggested
by the UN Committee, would be a gigantic leap of faith into uncharted territory and may be
one step too far this time around. However, I fully agree with Alison Douglass’ finding that
substituted and supported decision-making models for mental capacity law can coexist
comfortably.

I congratulate Alison Douglass on this report. Her recommendations are easily achievable
and, if New Zealand were to implement them, its new legislation would be state-of-the-art,
just as the PPPR was a generation ago.

Denzil Lush
Senior Judge of the Court of Protection
England and Wales
4 July 2016
iii
Professor Genevra Richardson Acknowledgements

The publication of this report is hugely welcome. It provides a most timely and lucid analysis of the

dilemmas raised by mental capacity law and practice. Dilemmas that have a very real impact on the
lives of many of the most vulnerable of our fellow citizens, on clinical practice and on the law. The report
Many people have contributed to this report. It would not have been possible to carry out this law reform
reviews developments in international human rights law and contemporary thinking in ethics. Against
project without the support and generosity I have received from a large number of people and
the background of the experience of law reform in England and Wales, it analyses the legal position in
New Zealand and provides some thoughtful recommendations for change. In the present context of organisations involved in the ever-expanding field of mental capacity law and practice. The
widespread and often polarised debate concerning the law's proper approach to decision-making, the multidisciplinary nature of this report is self-evident in the list of people set out in Appendix E, all of
report's thoughtful and considered style is of particular value. In this Foreword I have the space to
whom have willingly been interviewed or provided advice, resources and comments on various drafts
identify just two of the many difficult issues that Alison Douglass covers with great skill and sensitivity:
of the report. I wish to thank them all for being so generous with their time and their knowledge.
support and liberty safeguards.

I also acknowledge the people with impaired capacity, and their families, whom I have represented over
Over the last decade the focus of international human rights has shifted from a concern to protect people
the years and the valuable insights they have given related to the challenges they face in their lives.
with impaired decision-making capacity by making decisions for them, to a desire to place the person
at the centre by respecting their decisions and empowering them to exercise their legal rights just like
I would like to thank the following people for hosting me as a visiting researcher while in England:
anyone else. Central to this shift in focus has been the notion of support or supported decision-making.
In Chapter 2 Alison Douglass gives a wonderfully clear account of the evolution of this "support Professor Genevra Richardson, Dickson Poon School of Law, Kings College of London; Senior Judge
paradigm" in international human rights and considers how far it is reflected in the law in New Zealand Denzil Lush, Court of Protection; Alex Ruck Keene, barrister, 39 Essex Street Chambers, London; and
and in England and Wales. Of particular interest, is her analysis of tikanga Māori and her suggestion
Dr Michael Dunn, Ethox Centre, University of Oxford.
that New Zealand has a unique opportunity to enrich the wider debate by illustrating the importance of
cultural influences. In New Zealand, I would like to thank Professor John Dawson, Faculty of Law, University of Otago, for

his advice and peer review of this report; Professor Ron Paterson and Justice Collins QC for supporting
Since the turn of the century, the law in England and Wales has struggled with the question of how best
my fellowship application; Professor John McMillan and colleagues at the Bioethics Centre, University
to safeguard the interests of people who lack mental capacity and who are effectively detained in
supported residential or hospital care for their own protection. It is known as the question of the for Otago, for providing an academic base; Dr Greg Young, for our work together and making this a
Bournewood gap after the case where it was first identified. The problem lies in trying to find the precise medico-legal project; Jessie Lenagh-Glue, for her able research assistance; Dr Royden Somerville QC
mechanisms for oversight and review that will provide real protection for an exceptionally vulnerable
and colleagues at Barristers Chambers, for their interest and support; Naomi O’Connor for editorial
group of people without over regulation. In recognition of the very real need for proper oversight, we
assistance; and my family, including the cover design by Emma Crampton.
are working on improvements to our current system in England and Wales. In December 2016 the
Law Commission is due to publish its report and is likely to recommend simplification of our existing
Most of all, I would like to acknowledge the generous support of the New Zealand Law Foundation by
Deprivation of Liberty Safeguards.
awarding me the 2014 international research fellowship. Special thanks to Lynda Hagen and Dianne

In Chapter 3 Alison Douglass reviews the law in England and Wales from the Bournewood case to the Gallagher for their practical advice and support.
present day. This history is directly linked to the requirements of the European Convention on Human

Rights and the attempts in England and Wales to comply with them. But, as Alison Douglass explains,
the right to be free from arbitrary detention is not unique to the European Convention. It is both

widespread within human rights treaties and well established within the common law. The dilemma
raised by the Bournewood gap is not, therefore, limited to signatories of the European Convention and
Alison Douglass concludes that the legal safeguards available in New Zealand are insufficient to plug
it. With great insight and sensitivity she draws on the research she conducted in England and Wales
to inform her recommendation that Liberty Safeguards be introduced through New Zealand's mental
capacity legislation. Her understanding of the law in England and Wales, its origins and, most Naku te rourou, nau te rourou, ka ora ai te iwi.1
particularly, its practical implications has enabled Alison Douglass to produce a set of recommendations
that are balanced and closely informed by experience elsewhere. The result perfectly reflects the value With your basket and my basket the people will flourish.
of careful comparative work and the recommendations that have emerged from it deserve the most
serious attention.

Professor Genevra Richardson
Kings College London
4 July 2016
1 Whakatauki (proverb) provided by Janine Kapa-Blair (Kāi Tahu, Kāti Māmoe, Waitaha) Associate Dean –
Māori/Manutaki Tuarua - Māori, Otago Business School, University of Otago, sourced from M Mead and N
Grove Ngā Pēpeha a ngā Tīpuna 2003 (Victoria University Press, Wellington).
v
iv
Professor Genevra Richardson Acknowledgements

The publication of this report is hugely welcome. It provides a most timely and lucid analysis of the

dilemmas raised by mental capacity law and practice. Dilemmas that have a very real impact on the
lives of many of the most vulnerable of our fellow citizens, on clinical practice and on the law. The report
Many people have contributed to this report. It would not have been possible to carry out this law reform
reviews developments in international human rights law and contemporary thinking in ethics. Against
project without the support and generosity I have received from a large number of people and
the background of the experience of law reform in England and Wales, it analyses the legal position in
New Zealand and provides some thoughtful recommendations for change. In the present context of organisations involved in the ever-expanding field of mental capacity law and practice. The
widespread and often polarised debate concerning the law's proper approach to decision-making, the multidisciplinary nature of this report is self-evident in the list of people set out in Appendix E, all of
report's thoughtful and considered style is of particular value. In this Foreword I have the space to
whom have willingly been interviewed or provided advice, resources and comments on various drafts
identify just two of the many difficult issues that Alison Douglass covers with great skill and sensitivity:
of the report. I wish to thank them all for being so generous with their time and their knowledge.
support and liberty safeguards.

I also acknowledge the people with impaired capacity, and their families, whom I have represented over
Over the last decade the focus of international human rights has shifted from a concern to protect people
the years and the valuable insights they have given related to the challenges they face in their lives.
with impaired decision-making capacity by making decisions for them, to a desire to place the person
at the centre by respecting their decisions and empowering them to exercise their legal rights just like
I would like to thank the following people for hosting me as a visiting researcher while in England:
anyone else. Central to this shift in focus has been the notion of support or supported decision-making.
In Chapter 2 Alison Douglass gives a wonderfully clear account of the evolution of this "support Professor Genevra Richardson, Dickson Poon School of Law, Kings College of London; Senior Judge
paradigm" in international human rights and considers how far it is reflected in the law in New Zealand Denzil Lush, Court of Protection; Alex Ruck Keene, barrister, 39 Essex Street Chambers, London; and
and in England and Wales. Of particular interest, is her analysis of tikanga Māori and her suggestion
Dr Michael Dunn, Ethox Centre, University of Oxford.
that New Zealand has a unique opportunity to enrich the wider debate by illustrating the importance of
cultural influences. In New Zealand, I would like to thank Professor John Dawson, Faculty of Law, University of Otago, for

his advice and peer review of this report; Professor Ron Paterson and Justice Collins QC for supporting
Since the turn of the century, the law in England and Wales has struggled with the question of how best
my fellowship application; Professor John McMillan and colleagues at the Bioethics Centre, University
to safeguard the interests of people who lack mental capacity and who are effectively detained in
supported residential or hospital care for their own protection. It is known as the question of the for Otago, for providing an academic base; Dr Greg Young, for our work together and making this a
Bournewood gap after the case where it was first identified. The problem lies in trying to find the precise medico-legal project; Jessie Lenagh-Glue, for her able research assistance; Dr Royden Somerville QC
mechanisms for oversight and review that will provide real protection for an exceptionally vulnerable
and colleagues at Barristers Chambers, for their interest and support; Naomi O’Connor for editorial
group of people without over regulation. In recognition of the very real need for proper oversight, we
assistance; and my family, including the cover design by Emma Crampton.
are working on improvements to our current system in England and Wales. In December 2016 the
Law Commission is due to publish its report and is likely to recommend simplification of our existing
Most of all, I would like to acknowledge the generous support of the New Zealand Law Foundation by
Deprivation of Liberty Safeguards.
awarding me the 2014 international research fellowship. Special thanks to Lynda Hagen and Dianne

In Chapter 3 Alison Douglass reviews the law in England and Wales from the Bournewood case to the Gallagher for their practical advice and support.
present day. This history is directly linked to the requirements of the European Convention on Human

Rights and the attempts in England and Wales to comply with them. But, as Alison Douglass explains,
the right to be free from arbitrary detention is not unique to the European Convention. It is both

widespread within human rights treaties and well established within the common law. The dilemma
raised by the Bournewood gap is not, therefore, limited to signatories of the European Convention and
Alison Douglass concludes that the legal safeguards available in New Zealand are insufficient to plug
it. With great insight and sensitivity she draws on the research she conducted in England and Wales
to inform her recommendation that Liberty Safeguards be introduced through New Zealand's mental
capacity legislation. Her understanding of the law in England and Wales, its origins and, most Naku te rourou, nau te rourou, ka ora ai te iwi.1
particularly, its practical implications has enabled Alison Douglass to produce a set of recommendations
that are balanced and closely informed by experience elsewhere. The result perfectly reflects the value With your basket and my basket the people will flourish.
of careful comparative work and the recommendations that have emerged from it deserve the most
serious attention.

Professor Genevra Richardson
Kings College London
4 July 2016
1 Whakatauki (proverb) provided by Janine Kapa-Blair (Kāi Tahu, Kāti Māmoe, Waitaha) Associate Dean –
Māori/Manutaki Tuarua - Māori, Otago Business School, University of Otago, sourced from M Mead and N
Grove Ngā Pēpeha a ngā Tīpuna 2003 (Victoria University Press, Wellington).
v
v
Glossary

This glossary is a list of Māori and legal terms used throughout this report. It does not contain technical
definitions of these terms, but simply describes how they are used in this report.2

Māori terms used in this Report have the meanings set out below:

(cid:43)a(cid:83)(cid:460) Sub-tribal group.
Hui Gathering, meeting.
Iwi Tribal group.
Kaitiakitanga (cid:42)uar(cid:71)ian(cid:86)hi(cid:83) an(cid:71) (cid:83)rote(cid:70)tion (cid:69)a(cid:86)e(cid:71) on the Māori (cid:90)or(cid:79)(cid:71) (cid:89)ie(cid:90)(cid:17)
Kawa whakaruruhau Cultural safety, recognised in nursing practice as a patient-centred
approach to healthcare.
Ngā Kooti Rangatahi Youth courts held on marae (traditional meeting place).
Mana (cid:56)(cid:83)ho(cid:79)(cid:71)in(cid:74) (cid:71)i(cid:74)nit(cid:92) (cid:73)or (cid:69)oth (cid:83)er(cid:86)ona(cid:79) an(cid:71) (cid:90)hānau.
(cid:51)ākehā New Zealander of European descent.
Tangata whenua People of the land. Used to refer to Māori as the indigenous people of
New Zealand, or to refer to iwi or hap(cid:460) associated with a particular
geographical area.
Te Ao Māori A Māori (cid:90)or(cid:79)(cid:71)-view or the Maori dimension of understanding.
Te Tiriti o Waitangi The Treaty of Waitangi 1840.
TIkanga Māori The customary system of Māori values and practices that have
developed over time, sometimes defined in New Zealand legislation as
“Māori (cid:70)u(cid:86)tomar(cid:92) (cid:89)a(cid:79)ue(cid:86) an(cid:71) (cid:83)ra(cid:70)ti(cid:70)e(cid:86)(cid:180)(cid:17)
Tino rangatiratanga Self-determination, sovereignty, self-government.
Wāhi tapu Sacred place, sacred site e.g. a burial ground.
Whakapapa Genealogy, ancestral history, descent.
Whakawhanaungatanga The process of establishing relationships and relating well to others.
Whānau Family group. In the modern context, the term is sometimes used to
include friends who may not have any kinship ties to other members.
Whanaungatanga A relationship, kinship, sense of family connection, through shared
experiences of working together which provides a sense of belonging.

2 (cid:41)or (cid:73)urther e(cid:91)(cid:83)(cid:79)anation o(cid:73) Māori term(cid:86) (cid:86)ee(cid:29) www.maoridictionary.co.nz/.

vii
vi
Glossary

This glossary is a list of Māori and legal terms used throughout this report. It does not contain technical
definitions of these terms, but simply describes how they are used in this report.2

Māori terms used in this Report have the meanings set out below:

(cid:43)a(cid:83)(cid:460) Sub-tribal group.
Hui Gathering, meeting.
Iwi Tribal group.
Kaitiakitanga (cid:42)uar(cid:71)ian(cid:86)hi(cid:83) an(cid:71) (cid:83)rote(cid:70)tion (cid:69)a(cid:86)e(cid:71) on the Māori (cid:90)or(cid:79)(cid:71) (cid:89)ie(cid:90)(cid:17)
Kawa whakaruruhau Cultural safety, recognised in nursing practice as a patient-centred
approach to healthcare.
Ngā Kooti Rangatahi Youth courts held on marae (traditional meeting place).
Mana (cid:56)(cid:83)ho(cid:79)(cid:71)in(cid:74) (cid:71)i(cid:74)nit(cid:92) (cid:73)or (cid:69)oth (cid:83)er(cid:86)ona(cid:79) an(cid:71) (cid:90)hānau.
(cid:51)ākehā New Zealander of European descent.
Tangata whenua People of the land. Used to refer to Māori as the indigenous people of
New Zealand, or to refer to iwi or hap(cid:460) associated with a particular
geographical area.
Te Ao Māori A Māori (cid:90)or(cid:79)(cid:71)-view or the Maori dimension of understanding.
Te Tiriti o Waitangi The Treaty of Waitangi 1840.
TIkanga Māori The customary system of Māori values and practices that have
developed over time, sometimes defined in New Zealand legislation as
“Māori (cid:70)u(cid:86)tomar(cid:92) (cid:89)a(cid:79)ue(cid:86) an(cid:71) (cid:83)ra(cid:70)ti(cid:70)e(cid:86)(cid:180)(cid:17)
Tino rangatiratanga Self-determination, sovereignty, self-government.
Wāhi tapu Sacred place, sacred site e.g. a burial ground.
Whakapapa Genealogy, ancestral history, descent.
Whakawhanaungatanga The process of establishing relationships and relating well to others.
Whānau Family group. In the modern context, the term is sometimes used to
include friends who may not have any kinship ties to other members.
Whanaungatanga A relationship, kinship, sense of family connection, through shared
experiences of working together which provides a sense of belonging.

2 (cid:41)or (cid:73)urther e(cid:91)(cid:83)(cid:79)anation o(cid:73) Māori term(cid:86) (cid:86)ee(cid:29) www.maoridictionary.co.nz/.

vii
vii
Impaired decision- The inability to make legally binding decisions. The term “diminished
making capacity capacity” is sometimes used with a similar meaning to reflect that
Legal Terms used in this Report have the meanings set out below:
capacity or incapacity is not an absolute concept and is decision specific.

Lasting Powers of The Mental Capacity Act equivalent to an enduring power of attorney
Advance directive A written or oral statement by which a person makes provision for Attorney (LPA) (EPOA) under the PPPR Act.
healthcare decisions in the event that they become incompetent to make
Learning disability A condition giving rise to learning difficulties, especially when not
such decisions.
associated with physical disability, including intellectual disability.
Best interests A standard to guide substitute decision-making that takes into account
Legal agency The ability to act within the framework of the legal system.
the will and preferences of the person for whom the decision is being
made. Legal capacity As understood in human rights law, this term refers to a person’s
possession of rights and the ability to act on those rights on an equal
Capacity A person’s ability to make their own decisions, e.g. consent or refuse
basis with others. Legal capacity comprises both legal standing and
healthcare. The term “competence” is sometimes used with a similar
legal agency.
meaning, as well as “decision-making capacity” and “mental capacity”.

Legal standing Being recognised as a person before the law.
Capacity assessment A clinical interview undertaken by a health practitioner for the purpose
Parens patriae The inherent jurisdiction of the High Court to make orders in the best
of deciding whether a person has decision-making capacity in respect of
interests of individuals who lack capacity and who are unable to
a specific decision(s). The assessment involves examining the mental
safeguard their own welfare.
processes a person goes through in order to arrive at a decision.
Power of Attorney A document in which a person with capacity appoints another person to
Common law Law that derives its authority from decisions of the courts (case law)
make nominated decisions for them.
rather than from legislation passed by Parliament.
Property Manager A substitute decision-maker appointed by the Family Court under the
Court of Protection The specialised English court under the Mental Capacity Act which has
PPPR Act for a person who lacks capacity in respect of their property
(COP) jurisdiction over the property, financial affairs and the personal welfare
and financial affairs.
of adults who lack capacity to make decisions for themselves.
Public Guardian A statutory office set up under the Mental Capacity Act charged with
Cultural competence A standard of practice for health practitioners that recognises cultural
establishing and maintaining a register of lasting powers of attorney,
diversity and working in a culturally responsive manner.
supervising deputies appointed by the court, and investigating
Deprivation of Liberty When a person is under continuous supervision and control and is not complaints of abuse or referrals regarding adults who lack capacity.
free to leave, and the person lacks capacity to consent to these
Substitute decision- A person or the court with legal authority to make decisions on behalf of
arrangements.
maker someone else who is unable to make that decision.
Deprivation of Liberty Safeguards introduced under the Mental Capacity Act requiring certain
Supported decision- A process of providing support to people whose decision-making ability
Safeguards (DoLS) deprivations of liberty to be reviewed and authorised, even if the person
making is impaired, to enable them to make their own decisions.
is not actively seeking to leave the care arrangement.
Undue influence Where there is improper pressure or coercion by one person taking
Deputy A substitute decision-maker appointed by the Court of Protection for a
advantage of a position of power over another person who may be
person who lacks capacity to make property or personal welfare
regarded as vulnerable. A court may set aside a contract or a will and
decisions.
take into account undue influence in deciding whether a person has
Donor A person who gives a power of attorney to someone else (an attorney) capacity.
to make decisions on their behalf.
Vulnerable adult In English law this term refers to an adult who has capacity and therefore
Enduring Powers of A power of attorney made by a person with capacity which continues to is not subject to the Mental Capacity Act but who is nevertheless thought
Attorney (EPOA) operate, or endures, when the person loses capacity. to need protection from abusive relationships under the inherent
jurisdiction of the High Court.
Habeas corpus An application for writ of habeas corpus is one of the common law’s

oldest causes of action that allows a person to challenge the legality of
their detention.

ix
vviiiiii
Impaired decision- The inability to make legally binding decisions. The term “diminished
making capacity capacity” is sometimes used with a similar meaning to reflect that
Legal Terms used in this Report have the meanings set out below:
capacity or incapacity is not an absolute concept and is decision specific.

Lasting Powers of The Mental Capacity Act equivalent to an enduring power of attorney
Advance directive A written or oral statement by which a person makes provision for Attorney (LPA) (EPOA) under the PPPR Act.
healthcare decisions in the event that they become incompetent to make
Learning disability A condition giving rise to learning difficulties, especially when not
such decisions.
associated with physical disability, including intellectual disability.
Best interests A standard to guide substitute decision-making that takes into account
Legal agency The ability to act within the framework of the legal system.
the will and preferences of the person for whom the decision is being
made. Legal capacity As understood in human rights law, this term refers to a person’s
possession of rights and the ability to act on those rights on an equal
Capacity A person’s ability to make their own decisions, e.g. consent or refuse
basis with others. Legal capacity comprises both legal standing and
healthcare. The term “competence” is sometimes used with a similar
legal agency.
meaning, as well as “decision-making capacity” and “mental capacity”.

Legal standing Being recognised as a person before the law.
Capacity assessment A clinical interview undertaken by a health practitioner for the purpose
Parens patriae The inherent jurisdiction of the High Court to make orders in the best
of deciding whether a person has decision-making capacity in respect of
interests of individuals who lack capacity and who are unable to
a specific decision(s). The assessment involves examining the mental
safeguard their own welfare.
processes a person goes through in order to arrive at a decision.
Power of Attorney A document in which a person with capacity appoints another person to
Common law Law that derives its authority from decisions of the courts (case law)
make nominated decisions for them.
rather than from legislation passed by Parliament.
Property Manager A substitute decision-maker appointed by the Family Court under the
Court of Protection The specialised English court under the Mental Capacity Act which has
PPPR Act for a person who lacks capacity in respect of their property
(COP) jurisdiction over the property, financial affairs and the personal welfare
and financial affairs.
of adults who lack capacity to make decisions for themselves.
Public Guardian A statutory office set up under the Mental Capacity Act charged with
Cultural competence A standard of practice for health practitioners that recognises cultural
establishing and maintaining a register of lasting powers of attorney,
diversity and working in a culturally responsive manner.
supervising deputies appointed by the court, and investigating
Deprivation of Liberty When a person is under continuous supervision and control and is not complaints of abuse or referrals regarding adults who lack capacity.
free to leave, and the person lacks capacity to consent to these
Substitute decision- A person or the court with legal authority to make decisions on behalf of
arrangements.
maker someone else who is unable to make that decision.
Deprivation of Liberty Safeguards introduced under the Mental Capacity Act requiring certain
Supported decision- A process of providing support to people whose decision-making ability
Safeguards (DoLS) deprivations of liberty to be reviewed and authorised, even if the person
making is impaired, to enable them to make their own decisions.
is not actively seeking to leave the care arrangement.
Undue influence Where there is improper pressure or coercion by one person taking
Deputy A substitute decision-maker appointed by the Court of Protection for a
advantage of a position of power over another person who may be
person who lacks capacity to make property or personal welfare
regarded as vulnerable. A court may set aside a contract or a will and
decisions.
take into account undue influence in deciding whether a person has
Donor A person who gives a power of attorney to someone else (an attorney) capacity.
to make decisions on their behalf.
Vulnerable adult In English law this term refers to an adult who has capacity and therefore
Enduring Powers of A power of attorney made by a person with capacity which continues to is not subject to the Mental Capacity Act but who is nevertheless thought
Attorney (EPOA) operate, or endures, when the person loses capacity. to need protection from abusive relationships under the inherent
jurisdiction of the High Court.
Habeas corpus An application for writ of habeas corpus is one of the common law’s

oldest causes of action that allows a person to challenge the legality of
their detention.

ix
viii ix