Best interests- some perspectives

Transcription

1 Best interests- some perspectives Keith Walsh, solicitor, The Mental Health Act 2001 contains principles which are intended as a guide to the interpretation of the Act concerning the care or treatment of a person under the Act. Section 4 of the Act contains the most contentious guiding principle best interests. Section 4 (1) of the Mental Health Act 2001 states that in making a decision under the Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person), the best interests of the person shall be the principal consideration with due regard being given to the interests of other persons who may be at risk of serious harm if the decision is not made. Section 4(2) states that individuals are entitled to notification about certain decisions and to respond in relation to admission and treatment decisions as far as is practicable. Section 4(3) states that in all decisions regard must be had to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy. But are best interests always the principal consideration? Whelan quotes Eldergill, J. s view that reading s.4 in light of the general scheme of the Act, the patient s best interests are not always first. For example, if a patient constitutes a serious risk to others and satisfies the legal criteria for detention then this becomes the principal consideration and the patient s interests become secondary. When a Mental Health Tribunal is reviewing an Admission or Renewal Order, section 18 of the Act provides it shall review the detention of the person concerned and shall either (a) if satisfied that the patient is suffering from a mental disorder, and (i) that the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have been complied with, or (ii) if there has been a failure to comply with any such provision, that the failure does not affect the substance of the order and does not cause an injustice, affirm the order, or (b) if not so satisfied, revoke the order and direct that the patient be discharged from the approved centre concerned. It appears on an ordinary reading of section 18 that the principal issues to be considered by the Mental Health Tribunal in reviewing an Admission or Renewal Order are whether the patient suffers from a mental disorder or not, whether there has been a failure of compliance with certain sections of the Act if there has been a failure of compliance with the sections of the Act, whether the failure (a) affects the substance of the order and (b) causes an injustice 1

2 In addition section 4(3) of the Act states that in making a decision under the Act concerning the care or treatment of a person (including a decision to make an admission order in relation to a person) due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy. Many commentators have stated that there is a conflict between respect for a person s dignity, bodily integrity, privacy and autonomy and taking best interests as a primary consideration. The Expert Group on the Review of the Mental Health Act 2001 in their report delivered in December 2014 (and as yet unimplemented) describe the way best interests has been interpreted and applied by the Irish courts as being at the opposite end of the scale from autonomy. How have the Irish Courts interpreted best interests? As Whelan points out the decisions of the Irish Courts have veered from interpreting best interests as enhancing the rights of patients under the Act to restating paternalism as it existed prior to the introduction of the Act in Indeed one of the more gloomy aspects of conducting a habeas corpus case in the High Court is the recital of case law from the 1950s which was another era in terms of rights of those detained under the Mental Treatment Act 1945 and in terms of applying any type of rights based approach. Even gloomier for the applicant and their legal team is the reliance placed on this pre 2006 caselaw by the trial judge. The Expert Group stated that while the right of the person to having dignity, bodily integrity, privacy and autonomy respected was clearly stated in the Act, the fact that the term best interests is listed as a principal consideration along with the generally purposive interpretation of the Act had led the Courts over the years to interpret these principles in a paternalistic manner as was often the position in case law prior to the introduction of the 2001 Act. Hardiman J. in Supreme Court case of M.D. v Clinical Director of St. Brendan's Hospital & anor [2007] IESC 37 described the purpose of the Act, and in particular Sections 9-18 thereof, as intended to constitute a regime of protection for persons who are involuntarily detained because they are suffering from a mental disorder, he went on to state That purpose will not, in my view, be achieved unless the Act is complied with.. This emphasis on compliance with the Act was not necessarily reflected in the subsequent judgements of the High Court in a variety of cases brought before it in 2007 and subsequent years. The polar opposite approaches taken by the High Court can be viewed by the different positions taken by O Neill J. in two Mental Health Act cases in In the first M.R. v Byrne and Flynn [2007] I.E.H.C. 73; [2007] 3 I.R. 211 O Neill J. stated: Before embarking upon a consideration of the issues which have arisen in this case it is well to establish in general the correct approach when dealing with legislation of the kind involved here. It has been said and indeed it is common case that in approaching the 2

3 construction of the Act, the purposive approach is to be adopted, and the following passage from the judgement of McGuinness J. Gooden v. St. Otteran s Hospital [2005] 3 I.R. where she is speaking of the Mental Treatment Act of 1945 and says the following, illustrates the point; I respectfully accept Denham J. s analysis of the principles of interpretation as set out in that judgment. In interpreting s. 194, therefore, it would in my view be right to consider the purpose of the Act of 1945 as a whole. It is a wide ranging statute dealing with all aspects of provision of treatment for those suffering from mental illness ranging from the building of mental hospitals to details of their administration and staffing and to the reception and care of patients. It is divided into distinct but related parts. Section 194 occurs in the part of the Act which deals with the voluntary patients in mental hospitals. They cannot however be read entirely in isolation from those parts of the Act which deal with patients who have been committed to mental hospitals as a result of Reception Orders. Still less should it be read isolated from the surrounding sections in the same part and in particular s The same approach is in my view entirely appropriate in respect of the interpretation of the Act of 2001, which repealed the whole of the Mental Treatment Act of 1945 other than part VIII and sections 241, 276, 283 and 284. In addition the Act of 2001 also repealed the whole of the Mental Treatment Act of 1953, the whole of the Mental Treatment (Detention in Approved Institutions) Act of 1961, the whole of the Mental Treatment Act of 1961 other than sections 39 and 41. As is apparent from the preamble to the Act, the Act is a piece of legislation which comprehensively deals with the involuntary admission of persons suffering from mental disorders to approved centres and establishes the Mental Health Commission and Mental Health Commission Tribunals and an Inspector of Mental Health Services for the purposes of the independent review of the involuntary admission of persons to approved centres. In the case of In Re Philip Clarke [1950] I.R. 235 the former Supreme Court when considering the constitutionality of s. 165 of the Mental Treatment Act of 1945, in the judgment of O Byrne J., delivering the judgment of the court described the general aim the Act of 1945 as follows: The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and wellbeing of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt present to the minds of the draftsman when it was proclaimed in Article 40.1 of the Constitution that though, all citizens, as human persons are to be held equal before the law, the State, may, nevertheless, in its enactments have due regard to differences of capacity, physical and moral, and social functions. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others. The section is carefully drafted so as to ensure that the person alleged to be of unsound mind, shall be brought before, and examined by, responsible medical officers with the least possible delay. This seems to us to satisfy every reasonable requirement and we have not been satisfied, and do not consider that the Constitution requires, that there should be a judicial enquiry or determination before such a person can be placed and detained in a mental hospital. The section cannot, in our opinion be construed as an 3

4 attack upon the personal rights of the citizen, on the contrary it seems to us to be designed for the protection of the citizen and for the promotion of the common good. In my opinion having regard to the nature and purpose of the Act of 2001 as expressed in its preamble and indeed throughout its provisions, it is appropriate that it is regarded in the same way as the Mental Treatment Act of 1945, as of a paternal character, clearly intended for the care and custody of persons suffering from mental disorder. As is plainly obvious there are provisions included in the Act of 2001 which can be regarded as radical reforms of the Mental Treatment Act, The principal reform is the establishment of the Mental Health Commission and Mental Health Tribunals, thus providing for a quasi-judicial intervention for the purposes of the independent review of detention of persons in approved centres alleged to be suffering from mental disorders. O Neill J. referred to section 4(1) of the Act as being relevant but did not mention section 4(3). The high point of the rights based approach to best interests could be said to have been reached later that year in W.Q. v Mental Health Commission [2007] 3 I.R. 755; again decided by O Neill J. when he stated In my opinion the best interests of a person suffering from a mental disorder are secured by a faithful observance of and compliance with the statutory safeguards put into the 2001 Act by the Oireachtas. McMenamin J. affirmed this approach in J.B. v Director of Central Mental Hospital (No.2) [2007] I.E.H.C In another case from 2007 PMcG v Medical Director of the Mater Hospital [2007] I.E.H.C. 401, Peart J. on the one hand stated: In the circumstances of this case it was in my view appropriate for the applicant s solicitor to form the view that as the provisions of s. 22 of the Act had clearly not been complied with, the High Court should be asked to enquire into the legality of the applicant s detention. It is not for the solicitor appointed to represent the interests of the patient to ignore the failure to observe the provisions of s. 22 on the basis that she may not have believed that this Court was likely to order his release. That is a matter within the jurisdiction of this Court to decide. To fail to bring the matter to Court for such an inquiry on such a basis would lead to a risk that in some case or cases a patient might remain in unlawful detention without redress, given in particular the vulnerability of many such patients who may not be in a position to themselves instruct their appointed legal representative to apply for an order releasing him or her from detention. Such a situation would tend also to encourage a slack approach to the observance of the requirements of this legislation and this would be an undesirable situation to arise in relation to legislation whose very purpose is to put in place a regime of statutory procedures for the protection of vulnerable persons against involuntary unlawful detention. The protections put in place are detailed and specific and it is of the utmost importance that they be observed to the letter, and that no unnecessary shortcuts creep into the way in which the Act is operated. That is not to say that there could never be a case which the High Court would consider ought never to have been made. The Court must always retain the discretion to consider that the defect alleged is of such a trivial and insubstantial nature as to have always been bound to fail. 4

5 On the other hand he then goes on to state: It cannot have been the intention of the Oireachtas when it enacted this piece of legislation that its provisions would have to be acted upon in such a literal way that the best interests of the patient would take second place to those best interests. The Act lays down procedures which protect the patient s fundamental rights, and it is essential that those protections are afforded in all cases. But there may be situations where some deviation from the provisions of the Act will not undermine those protections. The leading case in this jurisdiction in the Supreme Court is that of E.H. v St. Vincents Hospital and Oths. [2009] IESC 46 decided by Kearns J. where he had to consider whether a person who was a voluntary patient for 12 days but had no capacity to consent to being a voluntary patient was lawfully detained or not. In finding that the person was lawfully detained, Kearns J. indicated the basis on which he was interpreting the term voluntary patient as follows: Any interpretation of the term [voluntary patient] in the Act must be informed by the overall scheme and paternalistic intent of the legislation as exemplified in particular by the provisions of sections 4 and 29 of the Act. Such an approach to interpretation in this context was approved by this Court in the course of a judgment delivered by McGuinness J. in Gooden v. St. Otteran s Hospital [2005] 3 I.R. 617 when, in relation to s. 194 of the Mental Treatment Act 1945 she emphasised that a purposive construction of the section was appropriate, stating at pp. 633 to 634:- In interpreting s. 194, therefore, it would in my view be right to consider the purpose of the Act of 1945 as a whole... At first reading the wording of s. 194 appears clear and unambiguous. If, however, it is interpreted literally as providing an absolute right to physical release from the hospital and as preventing any use of the machinery of s. 184 or the making of a reception order while the patient is still in the hospital, the logical result is that the only person for whom a reception order cannot in any circumstances be made is a voluntary patient who has given notice of discharge. During the 72 hour period of notice he is inviolate and at the end of it he must be physically released. This situation would apply even if the patient in question was so mentally ill as to be a danger either to himself or the public. That this is the effect of a literal interpretation of s. 194 is candidly admitted by counsel for the applicant. I pause only to state that at least in that case, unlike the present one, counsel appears to have been willing to consider the impact and likely effect on the patient of an order made directing release. McGuinness J. then continued:- In In re Philip Clarke [1950] I.R. 235 the former Supreme Court considered the constitutionality of s. 165 of the Act of O Byrne J. who delivered the judgment of the court, described the general aim of the Act of 1945 at pp. 247 to 248 thus:- The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of the draftsmen when it was proclaimed in Article

6 of the Constitution that, though all citizens, as human beings are to be held equal before the law, the State, may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others This passage has been generally accepted as expressing the nature and purpose of the Act of The Act provides for the detention of persons who are mentally ill, both for their own sake and for the sake of the common good. I do not see why any different approach should be adopted in relation to the Mental Health Act, 2001, nor, having regard to the Convention, do I believe that any different approach is mandated or required by Article 5 of the European Convention of Human Rights. Kearns J. went on to state: These proceedings were initiated and maintained on purely technical and unmeritorious grounds. It is difficult to see in what way they advanced the interests of the applicant who patently is in need of psychiatric care. The fact that s. 17 (1) (b) of the Act of 2001 provides for the assignment by the Commission of a legal representative for a patient following the making of an admission order or a renewal order should not give rise to an assumption that a legal challenge to that patient s detention is warranted unless the best interests of the patient so demand. Mere technical defects, without more, in a patient s detention should not give rise to a rush to court, notably where any such defect can or has been cured as in the present case. Only in cases where there had been a gross abuse of power or default of fundamental requirements would a defect in an earlier period of detention justify release from a later one. As Eldergill has pointed out in his commentary on the E.H. judgement what are technical defects? How would the best interests of a person be served if there were to be unlawfully detained? The E.H. judgment has had a chilling effect on subsequent High Court judgments and emphasized the importance of the pre 2006 caselaw in the interpretation of the Act. In the case of S.O. v. Adelaide and Meath Hospital of Tallaght, [2013] IEHC 132 Hogan J. set out the difficulties in interpreting the Act- The case-law which has followed the enactment of the Mental Health Act 2001 ( the Act of 2001 ) has endeavoured to strike a balance between the need to protect rights to personal liberty, due process and the rule of law on the one hand and the effective protection of the mentally ill, medical professionals and the patients family and friends on the other. It is not an easy balance to strike. If the courts veer in the direction of the paternalistic protection of the patient, important safeguards might suffer erosion over time to the point whereby the effective protection of the rule of law might be compromised. Yet, if on the other hand, the courts maintain an ultra-zealous attitude to questions of legality and insist on punctilious adherence to every statutory formality, the might lead to the annulment of otherwise perfectly sound admission decisions, sometimes perhaps years after the original decision has been 6

7 taken. The present case may be thought to provide a paradigm example of this dilemma. There is no doubt at all but that the applicant, Mr. O., suffers from psychiatric illness and is in urgent need of psychiatric care. Yet the manner in which he came to be involuntarily detained in the early evening of 8th March, 2013, raises significant questions regarding the operation of the 2001 Act. He found that the facts in this case represented a complete failure to comply with the requirements of section 10. There was a default of fundamental requirements. If a patient could be admitted by a general practitioner in the absence of any examination this would set at naught the safeguards deemed to be fundamental by the Oireachtas. Hogan J. found himself coerced into finding that there had been a default of fundamental requirements as set out in the Act and ordered the release of the applicant. Should section 4(1) re: Best interests remain in the Act? In their Report on the Operation of Part 2 of the Mental Health Act 2001 in 2008, the Mental Health Commission stated that the lack of definition of what constituted best interests was unfortunate. The Mental Health Commission proposed a code of practice for the Act to deal with best interests and their application under the Act. The Expert Group was conscious in conducting their review that, while there have been some positive changes in general society attitudes over time, people with mental illness still suffer discrimination and stigmatisation. The Group acknowledged the fundamental importance of working towards the removal of all elements of stigma in the field of mental health and this important tenet was a key part of the Group s thinking in looking at the issue of guiding principles. The Expert Group on the Review of the Mental Health Act 2001 advocated a move away from a paternalistic interpretation of the Act and away from retaining best interests as a guiding principle in order to comply with the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The Expert group emphasized General Comment No 1 of the Committee on the Rights of Persons with Disabilities (2014) which states at {21} that the best interests principle is not a safeguard which complies with article 12 in relation to adults. The will and preferences paradigm must replace the best interests paradigm to ensure that persons with disabilities enjoy the right to legal capacity on an equal basis with others. The Expert Group held that individuals with mental illness and with capacity have the right to make what others may consider to be unwise decisions. In place of best interests they proposed a list of guiding principles to reflect the importance of the person s right to autonomy. The Expert Group referred to the importance of self- 7

8 determination and referred to the presumption of capacity as set out in the Assisted Decision Making (Capacity) Bill, (as it then was) with the provision of support if required. The following are the Expert Group s recommendations in relation to best interests: 1. Insofar as practicable, a rights based approach should be adopted throughout any revised mental health legislation. 2. The following list of Guiding Principles of equal importance should be specified in the new law: a. The enjoyment of the highest attainable standard of mental health, with the person s own understanding of his or her mental health being given due respect b. Autonomy and self determination c. Dignity (there should be a presumption that the patient is the person best placed to determine what promotes/compromises his or her own dignity) [the Expert Group believe that dignity represents the best elements of best interests while avoiding the paternalistic interpretation] d. Bodily integrity e. Least restrictive care. The Group explained their rationale for point a. as follows: while mental health legislation is intended to cover interventions that are aimed at achieving the highest attainable level of mental health for the patient, the Group would reiterate that mental health is itself a contested concept and there is no single agreed source of authority in this area. The Group would stress that interventions by Mental Health Professionals and others such as the Court services should take account of the contested nature of mental illness and must, at all times, give due respect to the person s own understanding of his or her mental health. The Expert Group considered whether the list of guiding principles should be ranked in hierarchy but decided that the list should not place a greater emphasis on one rather than another principle. While this permits the maximum flexibility it does not lead to certainty. The experience in the past 20 years from the family law courts in terms of applying a checklist of factors to be taken into account under section 16 of the Family Law Act 1995 or section 20 of the Family Law (Divorce) Act 1996 has result in anything but clarity as to the weight or importance given to any of the factors in any particular case. Munby J. in Re: ITW v Z & Ors [2009] EWHC 2525 (Fam) stated when considering the lack of any hierarchy in applying the best interests checklist under the MCA 2005 there may, in the particular case be one or more features or factors which, as Thorpe LJ has frequently put it, are of magnetic importance in influencing or determining the outcome : see, for example Crossley v Crossley, at para [15] (contrasting the peripheral factors in the 8

9 case with the factor of magnetic importance ) and White v White where at page 314 he said Although there is no ranking of the criteria to be found in the statute, there is as it were a magnetism that draws the individual case to attach to one, two, or several factors as having decisive influence on its determination. Now that was said in the context of section 25 of the Matrimonial Causes Act 1973 but the principle, as it seems to me, is of more general application. 7 th April 2017 Keith Walsh Solicitor keith@kwsols.ie Documents and videos from UCC Mental Health Law Conferences are available at 9

10 Extract from Law Society Practice Note July 2008 CLIENT S INSTRUCTIONS OR BEST INTERESTS? Questions will be raised as to whether solicitors representing patients should act in accordance with the patient s instructions or whether their role is to act in the patient s best interests. (See the Mental Health Commission website at for relevant High Court judgments, post-commencement of the Mental Health Act 2001.) Section 4 of the Mental Health Act 2001 obliges persons making decisions under the act to act in the best interests of the patient. The solicitor s role is limited to acting in the client s best interests in terms of legal representation. What is in a patient s best interests is a matter for the professional judgement of the solicitor, taking into consideration the following points: 1) It is the patient s views or wishes that should be represented to the tribunal. A solicitor should act in accordance with the patient s instructions. However, in taking those instructions, the solicitor must determine whether or not the patient is capable or not capable of giving clear instructions. 2) It is recognised that some patients detained under the Mental Health Act 2001 will not have the mental capacity to give clear instructions to their solicitor. 3) All solicitors have a general duty to act in the best interests of the client at all times. This includes a requirement to give the clients their best advice. In cases coming within the provisions of the Mental Health Act 2001, this might include a realistic assessment of the likelihood of the patient being discharged, or advice about possible steps towards discharge, but the client patient has the right not to accept that advice. 4) In deciding what is in the patient s best interests, regard should be had to the following: The client should be encouraged to participate as fully as possible in the decision-making process, The person s known past and present wishes and feelings and the facts that he or she would consider important, The views of other people/ professionals whom the solicitor decides are appropriate or practicable to consult in the preparation of the case, and Whether the purpose for which any action or decision with regard to the detention and treatment of the patient was made can be achieved in a manner less restrictive of that person s liberty. The solicitor should prepare the evidence on behalf of the patient as in any other case, defending primarily the patient s liberty and right to treatment in the least restrictive setting. The solicitor should avoid an overly collaborative approach with the tribunal, leading to too easy an agreement to detention in the best interests of the patient. It is acknowledged that there are no hard and fast rules or correct answers to some of the ethical and other questions raised in representing patients who are detained under the Mental 10

11 Health Act However, in general, the solicitor s role is to act on the patient s instructions, advocating the patient s views and wishes, even if these may be considered by the solicitor to be bizarre or contrary to the patient s best interests. It is for the tribunal to decide, on the basis of the evidence before it, from the patient and from all the professionals purporting to act in the patient s best interests, whether the statutory criteria set out in the 2001 act are met. 11

12 ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 An Act to provide for the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or IN THE FUTURE, HAVING REGARD, INTER ALIA, TO THE PROTECTIONS AFFORDED BY THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS DONE AT ROME ON THE 4TH DAY OF NOVEMBER 1950 AS IT APPLIES IN THE STATE; to provide for the appointment by such persons of other persons to assist them in decision-making or to make decisions jointly with such persons; to provide for the making of applications to the Circuit Court or High Court in respect of such persons, including seeking the appointment by the Circuit Court of decision-making representatives for such persons; TO PROVIDE FOR THE MAKING OF ADVANCE HEALTHCARE DIRECTIVES BY PERSONS OF THEIR WILL AND PREFERENCES CONCERNING MEDICAL TREATMENT DECISIONS SHOULD SUCH A PERSON SUBSEQUENTLY LACK CAPACITY; TO PROVIDE FOR THE APPOINTMENT IN ADVANCE HEALTHCARE DIRECTIVES OF DESIGNATED HEALTHCARE REPRESENTATIVES WITH THE POWER TO, inter alia, ENSURE THAT THE ADVANCE HEALTHCARE DIRECTIVES CONCERNED ARE COMPLIED WITH; to provide for the appointment and functions of the Director of the Decision Support Service in respect of persons who require or may shortly require assistance in exercising their decision-making capacity; to provide for the amendment of the law relating to enduring powers of attorney; to provide for the ratification by the State of the Convention on the International Protection of Adults; and to provide for related matters. PART 2 Principles that Apply before and during Intervention in respect of Relevant Persons Guiding principles 8. (1) The principles set out in subsections (2) to (10) shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly. (2) It shall be presumed that a relevant person who falls within paragraph (a) of the definition of relevant person in section 2(1) has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act. (3) A relevant person who falls within paragraph (a) of the definition of relevant person in section 2 (1) shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so. (4) A relevant person who falls within paragraph (a) of the definition of relevant person in section 2 (1) shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision. (5) There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person. (6) An intervention in respect of a relevant person shall (a) be made in a manner that minimises (i) the restriction of the relevant person s rights, and 12

13 (ii) the restriction of the relevant person s freedom of action, (b) have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property, (c) be proportionate to the significance and urgency of the matter the subject of the intervention, and (d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the intervention. (7) The intervener, in making an intervention in respect of a relevant person, shall (a) permit, encourage and facilitate, in so far as is practicable, the relevant person to participate, or to improve his or her ability to participate, as fully as possible, in the intervention, (b) give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable, (c) take into account (i) the beliefs and values of the relevant person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and (ii) any other factors which the relevant person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable, (d) unless the intervener reasonably considers that it is not appropriate or practicable to do so, consider the views of (i) any person named by the relevant person as a person to be consulted on the matter concerned or any similar matter, and (ii) any decision-making assistant, co-decision-maker, decision-making representative or attorney for the relevant person, (e) act at all times in good faith and for the benefit of the relevant person, and (f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant. (8) The intervener, in making an intervention in respect of a relevant person, may consider the views of (a) any person engaged in caring for the relevant person, (b) any person who has a bona fide interest in the welfare of the relevant person, or (c) healthcare professionals. (9) In the case of an intervention in respect of a person who lacks capacity, regard shall be had to (a) the likelihood of the recovery of the relevant person s capacity in respect of the matter concerned, and (b) the urgency of making the intervention prior to such recovery. (10) The intervener, in making an intervention in respect of a relevant person (a) shall not attempt to obtain relevant information that is not reasonably required for making a relevant decision, 13

14 (b) shall not use relevant information for a purpose other than in relation to a relevant decision, and (c) shall take reasonable steps to ensure that relevant information (i) is kept secure from unauthorised access, use or disclosure, and (ii) is safely disposed of when he or she believes it is no longer required. 14