Vulnerable adults and undue influence

Assessments of decision-making capacity have an all-or-nothing quality: either we have the capacity to make a specified decision or we do not. In England, Wales and Scotland, an adult can only be assessed as lacking capacity if certain diagnostic criteria can be satisfied: there has to be either a disorder of the mind or brain or the presence of a physical disorder that prevents the adult communicating the decision.1 There has long been concern, however, about the plight of vulnerable adults who retain formal decision-making capacity but whose decisions may be undermined by factors not covered by the relevant sections of the legislation. They may for example meet the capacity criterion for consent but the voluntary nature of their decisions is challenged. Two recent cases, one in Scotland and one in England, have highlighted the plight of individuals who were assessed as retaining capacity but were subject to coercion by those close to them.

In January this year, the Mental Welfare Commission for Scotland published the report of an investigation into the response by statutory services and professionals to concerns raised in relation to a married couple, Mr and Mrs D, who have mild learning disability.2 Mr and Mrs D married in 1982 and the couple were supported by Mr D's father. When Mr D's father died, his brother, Mr E took over the supporting role. Despite expressions of concern from social services that Mr E was exploiting the couple, in 2003 Mr and Mrs D gave Mr E power of attorney. Although the couple's general practitioner assessed them both as having capacity to make out the power, neither could read the document that they signed, nor were they aware of the reasons for attending the surgery when asked to sign the document. Given that the solicitor was …