COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
on principles concerning the legal protection of incapable adults
(Adopted by the Committee of Ministers
on 23 February 1999,
at the 660th meeting of the Ministers' Deputies)
I. General considerations
1. The 3rd European Conference on Family Law on the subject "Family law in the future" (Cadiz, Spain, 20-22 April 1995) addressed, in particular, the question of the protection of incapable adults. The conference requested the Council of Europe to invite a group of specialists on this matter to examine the desirability of drafting a European instrument to protect incapable adults, guaranteeing their integrity and rights and, wherever possible, their independence. Following this proposal the Committee of Ministers of the Council of Europe set up, in 1995, the Group of Specialists on Incapable and Other Vulnerable Adults (CJ-S-MI), later re-named the Group of Specialists on Incapable Adults.
2. The Group of Specialists on Incapable Adults (CJ-S-MI), under the authority of the European Committee on Legal Co-operation (CDCJ), was instructed "to study and prepare draft principles concerning the legal aspects of acts of incapable adults; to study and prepare draft principles concerning the role and duties of representatives, carers, judicial and administrative authorities to assist and protect such persons; and to make proposals to the CDCJ with a view to the drafting of an international instrument (convention or recommendation) in these matters." The CDCJ, at its 67th meeting, authorised the CJ-S-MI to prepare a draft recommendation on principles concerning the legal protection of incapable adults.
3. The Group of Specialists on Incapable Adults, under the authority of the CDCJ, held six meetings under the chairmanship of Mr Jacques Jansen (Netherlands). At its first meeting, the CJ-S-MI prepared a questionnaire on issues concerning incapable adults to be sent to states, in order to prepare a comparative study on the existing measures of protection in the member states of the Council of Europe and to ascertain the number of persons concerned during recent years. Mr Eric Clive, law commissioner of the Scottish Law Commission and Vice-Chair of the CJ-S-MI, prepared a study concerning incapable adults on the basis of the replies to the questionnaire.
4. The Group of Specialists prepared a draft recommendation on principles concerning the legal protection on incapable adults at its fourth meeting on the basis of the first draft of principles concerning incapable adults which was prepared by the CJ-S-MI at its second and third meetings. The CJ-S-MI finalised the draft recommendation in two joint meetings with the Steering Committee on Bioethics (CDBI) and with the Committee of Experts on Family Law (CJ-FA), in order to adopt a multi-disciplinary approach affording more effective overall protection for incapable adults. For the same reasons, the CDCJ decided, at its
sixty-eighth meeting, to transmit, for information and comments, the text of the draft recommendation to the European Health Committee (CDSP), the Steering Committee on Social Policy (CDPS) and the Steering Committee for Human Rights (CDDH).
5. The Group of Specialists on Incapable Adults completed its work on the draft recommendation on principles concerning the legal protection of incapable adults during its sixth meeting. The draft recommendation was subsequently revised by the CDCJ and adopted by the Committee of Ministers on 23 February 1999 as Recommendation No. R (99) 4.
II. Comments on the recommendation
6. The reports and following discussions at the 3rd European Conference on Family Law showed clearly that the issue of incapable adults was likely to be arguably the most topical issue in the years to come. The reasons for this increased interest in this group of adults are manifold: demographic changes, medical developments, social changes and increased overall interest in the protection of human rights.
7. The number of elderly people is rising steadily in European populations, due to improving living conditions and medical advances. These persons' mental faculties often decline with age and the number of persons suffering from senile dementia is increasing markedly in European countries. Nevertheless, concerning this question of demographic changes, it is necessary to underline that the current life expectation in certain countries of central and eastern Europe is, at this moment, lower than in the western European countries, even if a tendency to increase appears. Despite this difference in the life expectation, it can be said that the general trend in Europe is towards an increase in the number of elderly people. In this respect Recommendation 1035 (1986) of the Parliamentary Assembly of the Council of Europe on ageing of populations in Europe: economic and social consequences, noted that during the period from 1990 to 2020 "increases of 20% and more are expected in the 45-60 age-group and of 15-20% in the 65 and over and there will be a disproportionate growth in the number of very old people, aged 80 and over, which would be one-third of the size of this group"; while Parliamentary Assembly Resolution 1008 (1993) on social policies for elderly persons and their self-reliance, noted that "in the Council of Europe member states, over 60 million people out of a total population of 480 million are in the elderly category, and the proportion is growing constantly."
8. As has been said, medical developments are one of the reasons for this increase in the number of elderly people. In effect, medical developments have meant that some people who would formerly have died of a disease, condition or injury can now be kept alive, sometimes, however, with a reduced mental capacity. Medical developments in the treatment of mental illness have also meant that a large number of patients who would formerly have required institutional care can now live in the community. Some such people may be vulnerable and in need of measures of protection.
9. Changing lifestyles separate many people from their families, who are not always able to care for relatives whose mental faculties are impaired. On the other hand, there is, at least in some countries, a more widespread distribution of resources. Many incapable adults will have a right to some state benefits or pensions and many older people suffering from dementia will have had an opportunity to accumulate some property during their working lives. Laws, which may have been designed at one time to deal with the problems of a small property-owning minority now have to be applied much more widely.
10. The second half of the twentieth century has seen a greatly increased emphasis on human rights. This affects attitudes to the care and protection of incapable people. There is a recognition that existing freedoms and capacities should be preserved as much as possible and those measures which needlessly take away people's rights are indefensible. There is also a much greater emphasis on personal welfare as opposed to the preservation of property.
11. The Group of Specialists, when preparing the recommendation, took into account the international legal background to this matter. Particular attention was paid, as is reflected in the Preamble, to the international instruments prepared in the framework of the Council of Europe. In this respect, the Group examined the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its additional protocols (in particular Articles 5, 6 and 8 of the Convention, and Article 1 of the First Protocol to the Convention), as well as the case law of the European Commission and Court of Human Rights relating to this matter. Moreover, especial attention was paid to the provisions of the recent Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (henceforth referred to in this text as the Convention on Human Rights and Biomedicine) of 4 April 1997 concerning interventions in the health field on persons not able to consent. Finally, the group examined the different resolutions and recommendation adopted by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe relating to the protection and welfare of people suffering from disabilities and vulnerabilities of various types in order to avoid any duplication.
12. The Group of Specialists also paid attention to the international instruments prepared in the framework of the United Nations relating to this subject: the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948; the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966; the Declaration on the rights of mentally retarded persons proclaimed by the General Assembly of the United Nations on 20 December 1971; the Declaration on the rights of disabled persons proclaimed by the General Assembly of the United Nations on 9 December 1975; the General Assembly Resolution on implementation of the international plan of action on ageing and related activities of 16 December 1991 and the General Assembly Resolution on the protection of persons with mental illness and the improvement of mental health care of 17 December 1991.
13. Finally, the Group of Specialists took into account the preparatory work of the Hague Conference on Private International Law concerning the protection of adults. In this respect, the Group of Specialists underlined that the present recommendation, which deals with substantive law matters, and the preliminary draft convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of the protection of adults prepared by the Hague Conference, would deal with the international private law aspects of the protection of incapable adults and would be complementary.
14. A comparative survey, based on the responses to the questionnaire on issues concerning incapable adults, has shown that legislative reforms on the protection, by representation or assistance, of incapable adults have been introduced or are under consideration in a number of member states of the Council of Europe and that, even if these reforms have common features, wide disparities in the legislation of member states in this area still exist. Despite these disparities, it is possible to discern a certain pattern in the European laws covered by the responses. In effect, according to Mr Clive's report, there are three types of systems in national laws relating to the protection of incapable adults. First, there is what might be called the traditional type of system, where the typical legal response is deprivation or restriction of legal capacity, usually coupled with the appointment of a tutor who represents the adult in almost all matters. Secondly, there is what might be called the functionally modified traditional type of system, where perceived social needs have been met by additions to the legal framework and where there is a wider range of measures available and more flexibility in response. Thirdly, there is what might be called the radically recast type of system, where the emphasis is firmly and consistently on protection and assistance rather than deprivation of legal capacity.
III. Introductory provisions on scope
15. Part I of the recommendation deals with scope of application and contains the definition of certain concepts, as understood in the context of the recommendation. First of all it focuses on the crucial question of the definition of the term "incapable adult"; secondly it refers to the causes of incapacity; thirdly it deals with the type of measures to which the principles apply; fourthly it deals with the meaning of the term "adult" and finally it deals with the meaning of the term "intervention in the health field" which appears in Part V.
16. The first paragraph of Part I deals with the crucial question of who are considered "incapable adults" in the context of this recommendation. According to the definition, an adult may be incapable due to an impairment or insufficiency of his or her personal faculties. For the purpose of the principles, incapacity is a functional concept relating to decision-making. Incapacity may be, and often will be, only partial or temporary. The incapacity might be temporary in its effect depending on, for example, the particular stage of an illness or the effects of treatment. In other words, the primary focus of the definition is on decision-making capacity.
17. However, to define incapable adults in terms only of decision-making would be too narrow and would result in indefensible anomalies. There may be people – sometimes called "vulnerable adults" – who can make decisions but who are unable, because of some mental or physical disorder, to understand or to express them or act upon them. For such people decision-making is possible but effective decision-making is not. One example of a person who may be able to make decisions, but who may be as vulnerable and as in need of protection by representation or assistance as a person who cannot, would be a person who is totally unable to communicate or to express decisions. A second example would be an adult who is able to make decisions but who, because of some non-cognitive mental disorder, makes wildly irrational decisions, which could not reasonably be regarded as a proper basis for the management of his or her personal or economic interests. A third example would be a person who can make decisions but who, because of a mental disorder, cannot remember them for more than a minute or two and who is accordingly unable properly to manage his or her affairs. A fourth example, would be a person who can make and remember decisions but who, because of a mental disorder, is wholly incapable of acting on them or on some of them. Yet another example would be a person who
can make decisions but who, because of extreme suggestibility, is in need of protection by representation or assistance. The definition therefore covers not only those who are unable to make decisions but also those who are unable to understand, express or act upon decisions.
18. Some legal systems expressly include people who abuse alcohol or other substances or even prodigals, who dissipate their assets to the prejudice of their families, within the category of those for whom measures of protection may be provided. Others expressly exclude them from this category. Others may not mention them one way or the other. Substance abuse or prodigality should not by themselves be regarded as bringing a person into the category of "incapable". However, a person who was in fact incapable as a result of such abuses would be within the scope of the principles.
19. The concept of autonomy is an important element in the first paragraph. It is used in a wide sense – based on the idea of the authenticity of decisions in the light of a person's character, values and life history. An autonomous decision must be free from external coercion and internal compulsion due, for example to such factors as schizophrenic delusions or severe depressive episodes. It should also be based on a sufficient understanding of the importance and consequences of the decision. Another important concept – namely rationality – is not used in this context. There is a danger that a reference to rationality could be misinterpreted and that merely eccentric behaviour, or behaviour deviating from prevailing norms, might be regarded as irrational. In this respect, the European Court of Human Rights stated in the Winterwerp case:"the Convention does not permit the confinement of an individual simply because his views or behaviour deviate from norms prevailing in a particular society" (European Court of Human Rights, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A, No. 33).
20. Paragraph 2 of the first part of the recommendation states that an adult may be considered incapable, as established in Article 6, paragraph 3, of the recent Convention on Human Rights and Biomedicine, due to "mental disability, a disease or similar reasons". Following the explanatory report of this Convention the term "similar reasons" refers to such situations as accidents or states of coma, for example, where the patient is unable to formulate his or her wishes or to communicate them (see paragraph 43 of the Explanatory Report of the Convention on Human Rights and Biomedicine). Although the important point, from the point of view of the taking of legal measures of protection, is the nature of incapacity rather than its underlying cause, it may be helpful to give some examples of ways in which incapacity may arise. However, one danger in referring to particular causes is that scientific and medical knowledge in this area is constantly changing. Fashions in terminology also change, partly because certain terms, which are initially intended to be purely descriptive, gradually seem to become derogatory. There is therefore a risk that any list of particular conditions or causes might soon become out of date. It is not easy to devise a suitable list. Nevertheless, the following mental and behavioural disorders among others may lead, in certain cases, to incapacity within the definition: mental retardation; senile dementia, in particular Alzheimer's disease in its later stages; certain forms of manic depressive illness and schizophrenia. Severe physical disabilities, such as total inability to communicate, may also bring a person under the scope of paragraph 1.
21. As the title of the recommendation shows, it is important to underline the rather juridical nature of the protection with which the instrument is concerned. This instrument is not concerned with the whole range of social security or social service measures, and not with different treatments for mental illness, but essentially with legal protection by representation or assistance. The terms "representation" and "assistance" are used here in a functional sense. Representation means primarily taking decisions for or on behalf of the adult. Assistance means primarily providing help or advice to the adult in relation to decisions or consenting to decisions taken by the adult. Both may include management functions. The third paragraph of Part I of the recommendation refers to "measures of protection" stricto sensu and "other arrangements", both in a legal sense. The difference between "measure" and "arrangement" turns mainly on the person or body who has taken the decision: a "measure" is adopted by a judicial or administrative authority and an "arrangement" is made by the individual himself or by others not acting in a judicial or administrative capacity.
22. Paragraph 4 of Part I of the recommendation deals with the meaning of the term "adult" as understood in these principles. The ages at which people cease to be legally incapable on the ground that they are still regarded as children vary from country to country. Eighteen is now a very common age for the attainment of majority but in some countries legal capacity in many or most civil law matters is attained at the age of 16. There would be a gap in protection in such countries if a person ceased to have a legal representative as a child at the age of 16 but could not yet be provided with a legal representative as an adult. Therefore, the principles refer to persons who are treated as being of full age under the applicable law on capacity in civil law matters. This formula ("treated as") has the additional advantage of covering emancipated minors.
23. Paragraph 5 of Part I of the recommendation deals with the meaning of the term "intervention in the health field" as understood in the context of the recommendation (Part V). In this respect, it is necessary to underline that the Convention on Human Rights and Biomedicine uses the expression "intervention in the health field" but does not define it in the text. However, the explanatory report gives some indications. It is a useful expression because it covers not only medical, surgical or dental treatment but also acts carried out for the purposes of preventive care, diagnosis, rehabilitation or research. In the context of the Convention on Human Rights and Biomedicine it may be that a definition is not necessary because the convention is aimed at experts in a particular field. In the context of a new instrument, which is aimed at legislators and policy advisers generally, rather than at health care experts in particular, a definition is useful. In this respect an "intervention in the health field" means any act performed professionally on a person for reasons of health. It includes, in particular, interventions for the purposes of preventive care, diagnosis, treatment, rehabilitation or research.
IV. Comments on the principles
Part II – Governing principles
Principle 1 – Respect for human rights
24. Principle 1 inaugurates Part II of the recommendation entitled "Governing principles". This heading underlines that when taking a measure of protection for an incapable adult or operating another legal arrangement it is necessary to take into account these essential and basic principles.
25. Incapable adults are in a weak position due to their incapacity, and they can easily be the object of abuse. Therefore, in the Preamble, and in particular in Principle 1, it is stressed that respect for the dignity of each person as a human being is a principle which underlies all the other principles. Principle 1 also states that laws, procedures and practices relating to the protection of incapable adults shall be based on respect for their human rights and fundamental freedoms. The reference to human rights is a general one, in order to avoid any duplication with the provisions of other international instruments concerning human rights (some of them appearing in the Preamble).
26. There are certain cases where in the interests of the person concerned there may have to be an infringement of, for example, the right to liberty or the right to the enjoyment of possessions. There may also be cases where, for example, the right to liberty has to be restricted in the interests of others. The recommendation expressly leaves the regulation of these matters to other international legal instruments mentioned in the Preamble, in particular to the Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention on Human Rights and Biomedicine.
Principle 2 – Flexibility in legal response
27. The first essential, when a country's laws on this subject are being reconsidered, is that there should be an adequate legislative framework providing for sufficient flexibility in legal response. There is no point, for example, in having a principle of adopting the least restrictive alternative, or a principle of having a response tailor-made to the needs of the situation, if the legal framework does not provide an adequate range of responses. The range may be provided either by making different types of measure or arrangement available, or by making available a type of measure which can be varied in content to suit the needs of each case, or by a combination of these methods. The choice of technique is left to national laws.
28. Effective emergency measures should always be available. In this context it is necessary to take into account the principles of Recommendation No. R (91) 9 of the Committee of Ministers to member states on emergency measures in family matters.
29. This flexibility principle implies also that the legal framework should provide for simple and inexpensive measures or other legal arrangements. Examples of such measures or arrangements might be the administration of sums within certain limits by hospital or other authorities, or the appointment by administrative authorities, under a simple and inexpensive procedure, of representatives with strictly limited powers.
30. The range of measures available should include measures which
do not necessarily restrict the legal capacity of the person concerned. This is a corollary of the general policy in favour of maximum preservation of capacity set out in Principle 3. In many cases the persons to whom measures of protection are applied are in a passive state and in a condition where there is no risk that they will enter into legal agreements. Accordingly there is no reason to remove their legal capacity. A need for such a step may, however, arise if the person concerned, regardless or rather because of the handicap, is active and it is felt necessary to protect him or her against making decisions which entail risks. It may also be necessary to prevent exploitation by others.
31. The range of measures should also provide for measures limited to one specific act or intervention. There are many situations where the appointment of a representative with continuing powers is unnecessary. Indeed, the appointment of any type of representative may be unnecessary. It may be sufficient for the court or other body itself to authorise the intervention. Examples might be the authorisation of the sale of a house, or the authorisation of a particular medical intervention.
32. Paragraph 6 deals with arrangements whereby an appointed person acts jointly with the adult concerned, who might well not be wholly incapable. Another form of joint representation might also be worth mentioning – namely that where there are two or more joint representatives. The advantage of such an arrangement is that the representatives can make different skills available. Another advantage in some situations is increased protection. There might, for example, be one representative who could provide valuable personal support but who might be unreliable financially. Joint guardianship could provide supervision and protection. Another technique involving two representatives is that of appointing a representative and an alternate representative who would take over if the principal representative died or became incapable of acting.
33. Paragraph 7 states the advantages of giving legal recognition to arrangements made in advance by the person himself or herself while still fully capable. Some may require no legal regulation. For example, a person may be able to enter into a contractual arrangement with his or her bank or similar institution whereby payments may be made to a nominated person if certain evidence of later incapacity is produced. It may be possible to establish joint accounts to achieve similar results. Some such advance arrangements may require rather more in the way of legal regulation. Examples of such arrangements might be continuing powers of attorney or advance directives in the health field. There has been an increasing use of specially adapted powers of attorney in some legal systems. A power of attorney is simply a power or authority granted by one person (the granter, or donor, or mandant, or principal) to another (the attorney, or donee, or mandatory, or agent) authorising the attorney to act on behalf of the granter. The scope of the power or authority depends on the terms of the grant or mandate which confers it. The basic concept of a power or authority to act, granted voluntarily by a mandate or commission, is a familiar one in European legal systems. A typical example might be the authority of a factor or estate manager to act on behalf of an absent landowner. However, the particular application of this concept in relation to incapable adults raises some special difficulties. Much depends, first, on whether the applicable law has a rule that the power ceases to have effect if the granter subsequently becomes incapable or a rule that it continues to have effect notwithstanding the onset of incapacity. If the general rule is cessation then the need is for the legal system to provide for an exception so that in specified circumstances, and subject to appropriate safeguards, the power can continue after the onset of incapacity. If the general rule is continuance then the need is for the legal system to consider what safeguards are needed for the situation which arises after the onset of incapacity.
34. Paragraph 8 refers to the advantages of providing some legal recognition for the functions commonly exercised de facto by family members and those involved in the affairs of the incapable adult, for instance a partner cohabiting with the incapable adult, or close friends. Two of the governing principles on the establishment of measures of protection are the principles of necessity and subsidiarity (see Principle 5 below). If the necessary protection and assistance can be provided in an appropriate way by family members or other persons involved in the affairs of the incapable adult then there may be no need for formal measures. At present it seems probable that in many legal systems family members and those involved in the affairs of the incapable adult are operating in a legal vacuum or at least in an unclear legal situation. Doctrines such as negotiorum gestio may not provide a complete answer, even in those systems where they are well developed. Of course, if legal recognition is given to decision-making by family members and those involved in the affairs of the incapable adult any powers conferred or recognised will have to be carefully limited, controlled and supervised.
Principle 3 – Maximum preservation of capacity
35. The legislative framework should recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Therefore the legislative framework should be such that extreme consequences are not attached automatically to measures of protection. In particular a measure of protection should not result in an automatic complete removal of legal capacity. However, a restriction of legal capacity should be available if necessary for the protection of the person concerned. There will never, it is submitted, be any need to restrict the capacity to vote or make a will or to consent or refuse consent to any medical treatment or other intervention in the health field or make other decisions of a personal nature such as the decision to marry. Such acts should depend on the presence or absence of actual capacity at the relevant time. Any rules on the assessment of capacity should make it clear that the assessment should be directed to capacity to take particular decisions or types of decision, or to undertake specific acts or acts in a specific area.
36. The representative of an incapable adult should promote, where possible, action by the adult on his or her own. The general principle here is that, so far as is possible and appropriate, the adult concerned should be involved in the establishment and implementation of any measures of protection. A particular application of this principle might be an arrangement whereby a representative could permit the adult to undertake certain specific acts or acts in a specific area, even in areas within the general competence of the representative. This principle is also applicable in the health care field (in this respect see Article 6 paragraph 3 of the Convention on Human Rights and Biomedicine).
Principle 4 – Publicity
37. The question of the publicity to be given to measures of protection is a difficult one. On the one hand this publicity can undoubtedly be stigmatising for the person concerned. On the other hand in some cases publicity may serve to protect not only third parties but also the adult concerned. Perhaps the only safe conclusion is that the need for publicity in relation to particular types of measures should be carefully assessed, as also should the particular type of publicity used. An entry in a register which is open to inspection by those who may be affected by a measure, but which in practice might only rarely be inspected, would be less stigmatising, for example, than a public notice or an annotation of a birth certificate. It seems to be preferable to leave some discretion to national laws in this matter so far as actual techniques are concerned. However the importance of avoiding unnecessarily stigmatising publicity seems clear.
Principle 5 – Necessity and subsidiarity
38. Two of the key principles in recent reforms of this branch of the law are the principles of necessity and subsidiarity. They are also known as the principle of minimum necessary intervention. They imply, first of all, that no measure of protection should be established unless it is necessary, taking into account the circumstances of the particular case. Secondly, in deciding whether a measure is necessary, account should be taken of any less formal arrangements which might be made or used, and of any assistance which might be provided by family members, public authorities or other means. The latter is the principle known as "subsidiarity": a response by means of legal measures should be subsidiary to a response by means of the use of informal arrangements or the provision of assistance. Any legislation addressing the problem of incapable adults should give a prominent place to these principles. The necessity principle would not, however, prevent a measure which is not strictly necessary from being taken with the adult's consent if it is ascertained that he or she has sufficient capacity to give such consent. For instance, it is possible that a measure of protection is established in order to provide for any subsequent incapacity (for example, a person suffering from Alzheimer's disease in its preliminary stages).
39. The reference to "necessity" raises a question about the criterion to be applied. Necessary for what? It is implicit that the measure must be necessary for the protection of the adult or his or her interests or welfare. Protection in turn implies protection against some danger or disadvantage, including the disadvantage of losing a benefit or opportunity which would otherwise be available.
Principle 6 – Proportionality
40. Another principle, which has also been regarded as important in all recent reforms, is the principle that where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances of the case. This is also known as the principle of the least restrictive alternative. The measure should restrict the legal capacity, rights and freedoms of the person concerned by the minimum which is consistent with achieving the purpose of the intervention. Laws of the more traditional type which provide that the taking of a certain measure of protection automatically deprives the person concerned of legal capacity or involves a very substantial restriction in legal capacity without regard to the needs of the particular situation would clearly not conform to this principle.
Principle 7 – Procedural fairness and efficiency
41. This Principle establishes that fair and efficient procedures for the taking of measures of protection should be provided. The "fairness" of the procedures should be understood as a principle applicable during the development of the proceedings. This implies, in particular, that there are adequate procedures for investigation and assessment (see Principle 12 below). The efficiency of the procedures is connected with Principle 11 below concerning the rules on competence to initiate proceedings.
42. There should be adequate procedural safeguards to protect the human rights of the adult concerned and to prevent possible abuses. It is necessary to be on guard against the danger that a change to welfare terminology will conceal the essential nature of what is being done. A measure which is called a measure of protection or assistance may in reality be an infringement of rights and freedoms from the point of view of the adult concerned.
Principle 8 – Paramountcy of interests and welfare of person concerned
43. It is important to stress that the interests and welfare of the adult concerned should be the paramount consideration in the establishment or implementation of a measure of protection. They are not necessarily the only consideration. Other people, such as those looking after the person concerned and, in some cases, neighbours and members of the public might also have interests which have to be taken into consideration. However, the emphasis should be firmly on the interests and welfare of the adult concerned.
44. This principle implies among other things that the choice of any person to represent or assist an incapable adult should be governed by the suitability of that person to safeguard and promote the adult's interests and welfare. In some family situations there are quite acute conflicts of interest and, while the invaluable and irreplaceable role of family members must be fully recognised and valued, the law must also be aware of the dangers which exist in certain situations of family conflict.
45. The safeguard and promotion of the adult's interests and welfare appear as cumulative conditions on the choice of the representative. It is necessary to take into account the close links between paragraph 2 of this Principle and paragraph 2 of Principle 9. The wishes of the adult as to the choice of any person to represent or assist him or her should be taken into account and given due respect provided that the person chosen by the adult is suitable for safeguarding and promoting the adult's interests and welfare (see paragraph 47 below).
46. The principle of the paramountcy of the interests and welfare of the adult concerned also implies that the property of the adult should not be preserved for the benefit of heirs or others if it can usefully and appropriately be managed and used for the benefit and for an improvement in the quality of life of the adult concerned.
Principle 9 – Respect for wishes and feelings of person concerned
47. One of the theoretical debates in relation to incapable adults is whether the principle governing intervention should be a "best interests" principle or a "substituted judgement" principle. When the choice is between the interests of the adult and the interests of other people, and when the adult has no known wishes on the matter, then it seems reasonable, as suggested above, to regard the interests of the adult as the paramount consideration. The question in some cases, however, may be between the interests of the adult and the wishes or supposed wishes of the adult. There can be no rigid answer to this question. In some cases it would be unreasonable and probably unacceptable to give full and automatic effect to what may be supposed to be the wishes of the adult. Incapacity can affect all kinds of people. To regard previously expressed wishes as absolutely binding on any representative in all circumstances would not always be a good idea. It seems clear, however, that one of the governing principles should be that in establishing or implementing a measure of protection the past and present wishes and feelings of the person concerned should be ascertained so far as possible, and should be taken into account and given due respect. The formula "due respect" allows some room for discretion.
48. The principle of respect for the wishes and feelings of the person concerned implies in particular that the wishes of the person as to the choice of any representative or assistant should be taken into account and, as far as possible, given due respect. It also implies that the representative should inform the adult concerned with regard to any decisions in major matters affecting him or her so that he or she can express a view. Respect for the wishes of the adult may, for example, justify the making of small gifts in accordance with the adult's wishes.
49. The principle also has implications in relation to directions that certain types of medical treatment should not be given. In this context it is useful to recall Article 9 of the Council of Europe's Convention on Human Rights and Biomedicine of 1997 which provides that: "The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account."
Principle 10 – Consultation
50. The principle of minimum necessary intervention means that there will very often be situations where either family members (or other persons involved informally in the affairs of the incapable adult) and appointed representatives have a role in protecting and assisting the adult concerned. There may also be situations where there are two or more representatives, and situations where a court or other body or person is called on to authorise or approve a particular intervention in a case where a representative is already in place. It seems clear that where people are involved in protecting and promoting the welfare of the adult it should be a fundamental principle that they should be consulted, so far is reasonable and practicable, by any person establishing or implementing a measure of protection. The way in which the consultation should be conducted, and the effects of the consultation or its absence are left to national law. It is also left to national law to decide which persons should be consulted.
Part III – Procedural principles
Principle 11 – Institution of proceedings
51. The list of those persons who have competence to initiate proceedings for the taking of measures of protection of incapable adults should be sufficiently wide to ensure that measures of protection can be considered in all cases where they are necessary. The list should include the adult concerned. It is no longer possible to assume, particularly in the case of old people, that there will always be responsible and interested members of the adult's family who are prepared to initiate proceedings. As has been said above, this principle shapes one of the aspects of the efficiency of the procedures (see Principle 7).
52. When instituting these proceedings it is necessary to give full effect to one particular procedural safeguard, namely the giving to the person concerned of information about the institution of proceedings which could affect his or her legal capacity, unless it would be manifestly meaningless to the person concerned or would present a severe danger to his or her health. In this respect, it is necessary to recall the requirements of Article 6 (especially paragraphs 1 and 3, a) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Principle 12 – Investigation and assessment
53. There should be adequate procedures for the investigation and assessment of the adult's personal faculties. This forms part of the fairness of the procedures as established in Principle 7.
54. A judge or other person taking any measure of protection which restricts the legal capacity of an adult should see personally the adult concerned before taking the measure or be personally satisfied as to the adult's condition. There should always be a requirement of expert reports in the case of more formal measures which interfere with capacity. These reports could be in written form or recorded in writing in those cases where the experts present their reports in an oral form, for instance during the decision-making process of the measure of protection. Even where the adult has been seen by the decision-maker, an expert report could also be a useful safeguard. In this respect, it is necessary to underline the requirement of an evaluation of social capability by qualified experts in the United Nations Declaration on the rights of mentally retarded persons (RES 2856 (XXVI) of the General Assembly, 20 December 1971).
Principle 13 – Right to be heard in person
55. Another particular procedural safeguard is the person's right to be heard, in person, in any proceedings which could affect his or her legal capacity. The person who has the right to be heard may, however, not be able to exercise this right in a particular case, for example if he or she is unable to intervene and to express an opinion or is too unwell to take part in the proceedings. The exercise of the right may also have to be controlled if, for example, the person proves to be disruptive. In these cases a right of representation of the adult concerned should be assured. Concerning this right to be heard, it is necessary to take into account the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular its Article 6, paragraph 1, as well as the case-law of the European Commission and Court of Human Rights concerning the right to be heard.
Principle 14 – Duration, review and appeal
56. Measures of protection should not be established for an indefinite duration unless this is necessary or appropriate in the interests of the adult concerned, for instance when the adult who needs the appointment of a representative suffers from senile dementia from which there is no possibility of recovery. Consideration should be given to the institution of periodical reviews of any measure of protection taken, unless the measure of protection is of fixed, and short, duration. The periodicity of such a review could be fixed, for example, by the authority establishing the measure of protection. The national law should determine the persons entitled to demand a review of measures of protection. In this respect, the adult concerned should be entitled to demand such a review.
57. Taking into account the present recommendation's approach – which recognises that there may be different degrees of incapacity, that incapacity may vary from time to time, and that therefore any measure of protection should be governed by the idea of the maximum preservation of capacity of the adult concerned – any change of circumstances and, above all, a change in the condition of the adult should lead to a review of measures of protection. Relevant changes of circumstances other than changes in the adult's condition might include, for example, the inheritance of property by the adult or changes in the adult's place of residence. Furthermore, if the conditions which determined the establishment of a measure of protection are no longer fulfilled, that measure should be terminated.
58. There should also be adequate provision for appeals, as required by the United Nations Declaration on the rights of mentally retarded persons (RES 2856 (XXVI) of the General Assembly, 20 December 1971).
Principle 15 – Provisional measures in case of emergency
59. In cases of emergency there should, as far as possible, be simple and expeditious procedures for taking provisional measures of protection. In these cases, the principles concerning the institution of proceedings (Principle 11), the investigation and assessment (Principle 12), the right to be heard in person (Principle 13) and duration, review and appeal (Principle 14) should also be applicable as far as possible according to the circumstances.
Principle 16 – Adequate control
60. Adequate control of the operation of measures of protection and of the acts and decisions of representatives should be provided. However, there is a balancing exercise to be done. Too much control, particularly of less formal measures, may be counterproductive and indeed may make the measures totally impracticable. The control may take into account that excessive costs and burdens may prevent or discourage the use of measures which could be advantageous to the persons concerned.
Principle 17 – Qualified persons
61. Steps should be taken with a view to providing an adequate number of suitably qualified persons for the representation and assistance of incapable adults. What constitute suitable qualifications will differ widely according to the role and functions of the person who provides representation or assistance. In some countries, notably Austria and France, it has been found extremely useful to establish and support associations with the functions of providing and training people who can represent or assist incapable adults.
Part IV – The role of representatives
Principle 18 – Control of powers arising by operation of law
62. Principle 18 is the first principle of Part IV of the recommendation, which deals with the role of representatives.
63. In some countries certain people may have fairly wide powers by operation of law in some circumstances. For example, the parents of a person who is incapable while in minority may continue to have the powers of legal representatives after the attainment of majority by the person. Other countries, however, do not recognise that any person has wide powers by operation of law in relation to the affairs of an incapable adult. In particular they do not recognise that parental responsibility can continue after the child has become an adult. There may be a general policy in such countries against "infantilisation" of incapable adults. However, even in these countries, it is probable that there will be limited powers which arise by operation of law. For example, the law on negotiorum gestio (or "management of affairs") may allow acts of administration or acts for the protection of property to be done on behalf of an adult who is incapable of authorising them to be done. It would be inappropriate to declare all such powers unacceptable. Indeed, the conferment or recognition of some limited powers might be very useful if the role of family members and carers, and medical professionals, is to be sufficiently emphasised and valued and if a technical legal vacuum is to be avoided.
64. What does seem clear is the need to limit and control the exercise of any powers conferred on any person by operation of law to act or take decisions on behalf of an incapable adult. There are obvious human rights implications here and obvious dangers of contravening the principles of necessity and proportionality. Therefore, it is necessary to underline that the conferment of any powers by operation of law should never deprive the adult concerned of legal capacity. Any such powers should be seen as supplementary. They should be capable of being modified
or terminated at any time by a measure of protection taken by a judicial or administrative authority. The need to control the exercise of such powers does not mean that a burdensome system of supervision must be established. It would be sufficient to ensure that the exercise of the powers could be subjected to control where necessary.
65. The principles concerning the paramountcy of the interests and welfare of the person concerned (Principle 8), respect for the wishes and feelings of the adult (Principle 9) and consultation (Principle 10) should apply to the exercise of such powers conferred on any person by operation of law.
Principle 19 – Limitation of powers of representatives
66. Some legal systems expressly provide that there are certain matters of a highly personal nature which a representative cannot undertake on behalf of the incapable adult. It seems fairly clear that there are certain matters which almost everyone would agree were so personal that a representative should never undertake them on behalf of the adult concerned. Examples would be voting, marrying, recognising and adopting a child. There is a range of other measures where different views would be taken and where the appropriate course might well be to leave decisions to national laws, taking into account the relevant other principles.
For example, there are arguments both ways on such questions as making, varying or revoking a will on behalf of the incapable adult, the making of donations, or the bringing or defending of divorce proceedings.
67. Another technique which is often used is to require a court or other body to give specific approval to certain decisions of a serious nature, such as consent to certain serious or controversial interventions in the health field, the disposal of capital in certain ways, or the incurring of certain types of obligation. National laws may require such approval in specified cases.
Principle 20 – Liability
68. The general principle is that representatives are liable, in accordance with national law, for any loss or damage caused by them to incapable adults while exercising their functions. In particular, the laws on liability for wrongful acts, negligence or maltreatment should apply to representatives and others involved in the affairs of incapable adults.
69. However, the normal laws on responsibility may have to be adjusted in the light of some of the principles. For example, should a representative be liable for a diminution in the estate of the adult concerned if the diminution is the direct result of compliance with the principle requiring the past wishes of the adult to be taken into account and given due respect? Again, should a representative be liable for loss to the estate of the adult if it results from compliance with the principle of allowing the adult to become involved in his or her own affairs? In such cases, if the representative has acted reasonably and in good faith in accordance with the principles he or she should not be liable. On the other hand, it would be necessary, or at least advisable to establish an obligatory insurance in order to enable any eventual responsibility to be met.
Principle 21 – Remuneration and expenses
70. The question of the remuneration of representatives or other assistants is clearly a very important one in practice. Reimbursement of expenses is also important. A great deal has to be left to national laws. Where the estate of the incapable adult is substantial, there would seem to be no reason of principle why the costs of representation should not be met out of the estate. The problem becomes more acute when the means of the adult are modest, and in such cases some public assistance may well be necessary or desirable. Another distinction, which is made in some national laws, is between those who are acting in a professional capacity and those who are acting as family members. There may also be cases where a distinction between the management of personal matters and the management of economic matters would be justifiable. However, the point of the principle is that national laws should have provisions on this important matter.
Part V – Interventions in the health field
71. Part V deals with the question of interventions in the health field. In this respect, it is necessary to underline that the Group of Specialists who prepared the present recommendation examined the relationship between this recommendation concerning the legal protection of incapable adults and the Convention on Human Rights and Biomedicine in a joint meeting with the Steering Committee on Bioethics (CDBI). The conclusions reached in this first binding international legal instrument in these matters are followed in so far as they cover questions within the scope of this recommendation. However, it had been decided that the recommendation on principles concerning the legal protection of incapable adults should contain some principles on interventions in the health field. First of all, there are some points which are left unresolved by the Convention on Human Rights and Biomedicine. For example, this convention left aside the important question whether, as a general rule, capacity to consent to a medical intervention should be based on actual capacity at the time of the proposed intervention or on legal incapacity. Secondly, even where the matter in question has been dealt with in the Convention on Human Rights and Biomedicine, there could be value in repeating the most relevant conclusions in the present recommendation. There may be countries which do not ratify the Convention on Human Rights and Biomedicine for reasons unconnected with the rules on incapable adults. In relation to such countries principles in a recommendation could be influential. There is, however, a problem in this area. Certain interventions (or non-interventions) in relation to incapable adults in the health field – such as terminating or withholding life support treatment, or undertaking non-therapeutic research – give rise to such acute differences of opinion that concern about them could dominate discussions of the whole instrument and prevent fair consideration of the proposals on measures of protection generally. Therefore, it was decided not to include detailed recommendations on these topics.
72. For the reasons mentioned in the above paragraphs, Part V of the draft recommendation reproduces, slightly amended, some of the provisions of the Convention on Human Rights and Biomedicine. It is necessary to note the specificity of this part in the context of the recommendation. Part V does not provide for the representation and assistance of the adult, as the rest of the provisions of the recommendation do, but for the protection of the adult in cases where an intervention in the health field is envisaged.
Principle 22 – Consent
73. Paragraph 1 of this principle underlines that where an adult, even if subject to a measure of protection, is in fact capable at the relevant time of giving free and informed consent to an intervention in the health field, the intervention may only be carried out with his or her consent. This principle is a direct consequence of the recommendation's approach of favouring actual capacity wherever possible. It also takes account of the fact that an adult may be subject only to a limited measure of protection – for example one relating only to property. The principle does not prevent the possibility, for an adult subject to a measure of protection, of consultation with his or her representative. The second sentence of this principle deals with the active role that the health care professionals and representatives should play in order to seek the consent of the adult concerned. In some cases it may be necessary for the adult's consent to be communicated through a person he or she trusts.
74. If a disagreement concerning the adult's actual capacity exists between, for instance, a doctor and the representative of the adult, and the disagreement cannot otherwise be resolved, the competent authority might have to be asked to decide.
75. Concerning the protection of adults not able to give consent (paragraph 2), it is appropriate to adopt the solutions in Article 6 of the Convention on Human Rights and Biomedicine with appropriate alterations in the wording. It is necessary to remember that, save in exceptional circumstances (see comment on Principle 24), Article 6 requires the intervention to be for the direct benefit of the adult concerned and also requires the authorisation of his or her representative or of "an authority or a person or body provided for by law". It should be noted that Principles 8 to 10 apply to interventions in the health field (see Principle 27). Accordingly, even if the adult is not able to consent to a particular intervention, his or her wishes should still be ascertained, so far as possible, taken into account and given due respect. This principle should not be interpreted as limiting or otherwise affecting the possibility for national law to grant a wider protection to the individual with regard to healthcare interventions.
76. The question of which authorities, persons or bodies should be provided for by law as having decision-making powers in relation to incapable adults is particularly important in relation to medical treatment (Paragraph 3). At any one time in any country there will be many potential patients who are in fact incapable of giving free and informed consent to medical treatment but who have no formally appointed legal representative. The rules on treatment in emergencies provide a partial answer to the practical problems which arise, but not a complete answer.
77. It is probable that there are many minor and routine treatments or interventions, which may not arise in situations of emergency, which may be slightly invasive, but which would not justify the formal appointment of a legal representative or even the seeking of authorisation from a court or similar body. Consider, for example, the freezing-off of a wart, which causes irritation or discomfort, or the stitching of a small cut which would heal, but less well, without stitching. In practice there is little doubt that many such treatments will simply be provided. But unless the law actually gives some authority to act in such cases the intervention will technically be of doubtful legality. Doctors who are doing their best for their patients, and who are trying to act in accordance with internationally accepted standards and codes of professional ethics, deserve better of the law than being left to intervene in a legal vacuum. And it is in no-one's interests that legal proceedings should have to be taken in such cases for the appointment of a representative or the formal giving of authority.
78. It is suggested that states reviewing their laws on incapable adults should consider what authorities, persons or bodies should be allowed by law to authorise medical treatment which, in the opinion of the medical professionals in charge of the case, is clearly for the benefit of an incapable adult. There is a strong argument for enabling medical professionals themselves to authorise certain minor interventions. Certain particularly serious interventions might require authorisation from an appointed representative with appropriate powers or, in some cases, from some special body or court. The details and scope of authorisation systems are for national laws to determine. The important point is that the principles draw attention to the need for such matters to be given careful consideration. The new emphasis on subsidiarity and proportionality means that it will be quite normal for an incapable adult not to have a representative with extensive powers. That is something to be welcomed rather than deplored but it does mean that care will have to be taken not to leave any unnecessary legal gaps.
79. A particularly sensitive question appears in those cases where there exists a disagreement between persons or bodies authorised to consent or refuse consent to interventions in the health field in relation to adults who are incapable of giving consent (Paragraph 4). Internal law should establish mechanisms for the resolution of such conflicts. A typical case might concern two representatives of the incapable adult: one representative with general powers and the other representative with powers in the health field. In these cases it is possible that the representative with the general powers might oppose or veto a medical treatment for the adult which is available and which the doctors or others in charge of medical care, including the representative with power in the health field, consider is necessary in the interests of the adult. One approach, which seems suspect on human rights grounds, is to say that a representative with general powers can refuse the treatment on behalf of the adult in precisely the same way as the adult could refuse treatment if fully capable. Another approach is to provide that that representative can refuse the treatment on behalf of the adult but will thereby expose himself or herself to a claim for damages for acting contrary to the adult's best interests. This approach is also suspect. It would seem to be preferable to deal with the problem before, rather than after, irreparable damage has been done to the person concerned. Another approach is to provide that, while the representative with general powers may have a right to be consulted, he or she never has a right of veto or a right to impose any delay or reconsideration. Due to the different possible approaches and the sensitive nature of this matter, the present principle provides only for the need to establish mechanisms for the resolution of the conflict without suggesting the way to solve it. However, the solution adopted should always be in agreement with the other principles of this recommendation, in particular those concerning respect for human rights and the paramountcy of the interests and welfare of the person concerned.
Principle 23 – Consent (alternative rules)
80. As mentioned above, the Convention on Human Rights and Biomedicine left aside the important question of whether, as a general rule, capacity to consent to an intervention in the health field should be based on actual capacity at the time of the proposed intervention or on legal incapacity. The present recommendation deals with this question and considers that in this matter the main rule should be based on actual capacity at the time of the proposed intervention (see comments above on Principle 22). However, the recommendation also includes Principle 23 in order to take into account the fact that in the legal systems of some member states of the Council of Europe the notion of factual capacity is unknown and a declaration of incapacity by a judicial authority is required. Countries with such systems will be able to use the alternative approach set out in Principle 23.
81. Paragraph 1 deals with those cases where an adult is subject to a measure of protection and accordingly an intervention in the health field can be carried out only with the authorisation of a person or a body provided for by law. However, the adult's consent should be sought if it is ascertained that the adult has sufficient capacity to give such consent.
82. Paragraph 2 deals with those cases where an adult is not in a position to give free and informed consent to an intervention in the health field according to the law. In these cases it is appropriate to adopt the solutions in Article 6 of the Convention on Human Rights and Biomedicine which requires the intervention to be for the direct benefit of the adult concerned and also requires the authorisation of his or her representative or of "an authority or a person or body provided for by law" (see comments in paragraph 75 above).
83. Paragraph 3 deals with the need to establish appropriate remedies in national law in order to allow the adult to be heard by an independent official body (for example, a court) before any important medical intervention is carried out. This rule is applicable to both situations described in the previous paragraphs. The idea is that in those cases where the adult opposes an important medical intervention, national law should provide appropriate remedies to enable a fair hearing of the person concerned by an independent official body in the course of which the adult may voice his or her views. The medical intervention should not be carried out until then.
Principle 24: Exceptional cases
84. This principle deals with interventions of a special nature which require special rules and where, sometimes, the normal principle that an intervention must be for the direct benefit of the person concerned may have to be slightly modified. The concept of "benefit" is notoriously difficult to apply in a case where a person is, for example, reliably diagnosed as being in a persistent vegetative state – permanently unconscious and perhaps only kept alive by artificial measures. The concept of "benefit" is also difficult to apply in cases where any intervention would at most prolong artificially for a few minutes or hours the natural process of dying. However any modification of the concept of "direct benefit" in such areas would have to be balanced by extra protection for the person concerned so as to guard against the possibility of abuse or irregularity. In this respect, it is necessary to take into account that the Convention on Human Rights and Biomedicine permits an intervention which is not of direct benefit to the individual in exceptional circumstances (see Article 17, paragraph 2 of the Convention).
85. The issues surrounding research on incapable adults have been very thoroughly investigated and discussed in relation to the Convention on Human Rights and Biomedicine. They also raise difficult questions of a slightly different nature from those dealt with in this recommendation and also involve some diminution in the concept of direct benefit coupled with additional protection. Furthermore, other international legal instruments have dealt with these questions of medical research. For these reasons, the present recommendation does not deal specifically with the question of medical research.
86. This principle says that special rules may be provided by national laws, in accordance with relevant international instruments, in relation to interventions, which, because of their special nature, require the provision of additional protection for the person concerned. Such rules may involve a limited derogation from the criterion of direct benefit, provided that the additional protection is such as to minimise the possibility of any abuse or irregularity.
Principle 25 – Protection of adults with a mental disorder
87. Article 7 of the Convention on Human Rights and Biomedicine deals with interventions aimed at treating the mental disorder of a person who has a mental disorder of a serious nature. Such persons form a particular sub-category of vulnerable persons. They may actually be capable of making a decision but may still require compulsory treatment. It seems to be appropriate to adopt the solution of Article 7 of the Convention on Human Rights and Biomedicine.
88. During the preparation of the present recommendation, the Group of Specialists also took into account the work carried out by the Working Party on Psychiatry and Human Rights (CDBI-PH), which was dealing with the revision of Recommendation No. R (83) 2 of the Committee of Ministers to member states concerning the legal protection of persons suffering from mental disorder placed as involuntary patients.
Principle 26 – Permissibility of intervention in emergency situation
89. It is clearly essential to allow interventions without consent in cases of emergency. This is dealt with in Article 8 of the Convention on Human Rights and Biomedicine, which can again usefully be adopted for the purposes of the recommendation. The explanatory report on the Convention on Human Rights and Biomedicine explains that "emergency" is not to be construed too narrowly: it is not limited to life-saving situations, but also it applies to medically necessary interventions which cannot be delayed.
Principle 27 – Applicability of certain principles applying to measures of protection
90. It is necessary to underline that due to the specificity of Part V of the recommendation (it provides not for representation but for interventions in the health field), there are only a few of the preceding principles which will be applicable to interventions in the health field. It is obvious that Principle 1 (on respect for human rights) will always be applicable. Furthermore, the principles of the paramountcy of the interests and welfare of the person concerned, of respect for the past and present wishes and feelings of the person concerned, and of consultation, apply to interventions in the health field as they apply to measures of protection. In particular, and in accordance with Principle 9, the previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes should be taken into account. This may be particularly important in those cases where the adult has, while capable, executed a valid refusal of consent to a particular type of intervention. The principle relating to consultation is also relevant here because, for example, a person or body specifically empowered by law to authorise an intervention should consult with close relatives in so far as this is practicable and reasonable. All of this is entirely consistent with the approach of the Convention on Human Rights and Biomedicine.
Principle 28: Permissibility of special rules on certain matters
91. Principle 28 makes it possible for the states to introduce special rules containing derogations from the principles of Part V. Such rules may be provided under the condition that they are in accordance with relevant international instruments, and are necessary in a democratic society in the interests of public safety, for the prevention of crime, for the protection of public health or for the protection of the rights and freedoms of others. The principle reiterates paragraph 1 of Article 26 of the Convention of Human Rights and Biomedicine. Special rules may be necessary, for instance, in cases where a treatment is needed in order to prevent the adult from infecting other people or, where the adult is a risk to public safety and must, therefore, be kept in a hospital for treatment.
 This is the doctrine of "management of affairs" whereby a person may lawfully intervene to manage or protect the affairs of someone else who is not available to do so, either because of absence or, at least in some systems, because of incapacity. The manager can recover his or her expenses for doing so. The manager has no authorisation from the person whose affairs are managed: the authority to intervene is derived from the law itself.
 It may not be clear, for example, whether they have any application in relation to decisions on personal welfare.
 There are various ways of expressing this principle. Terms like "best interests", "welfare" or "benefit" have been considered. The formula "interests and welfare" is the same as that used in the Convention on Human Rights and Biomedicine.
 It does not seem to be necessary to repeat the rules about the giving of information as they are of general application and are not concerned specifically with incapable adults.
 The rules are not confined to life-saving interventions. See the explanatory report to the Convention on Human Rights and Biomedicine, paragraphs 56-59.
 There are many international instruments, apart from the Convention on Human Rights and Biomedicine, with a bearing on these questions. See in particular recommendation No. R (90) 3 of the Committee of Ministers of the Council of Europe concerning medical research on human beings. For a review of the international and national positions in relation to medical research see the report by Professor Roscam Abbing prepared in connection with the work of the Council of Europe's Steering Committee on Bioethics in 1994 (DIR/JUR (94) 9).