Protecting the vulnerable person

Mon 03 June 2019, Philippe Ropenga Incapacity

It has recently been seen that the French Cour de cassation reminded the general public that disability did not necessarily mean incapacity.¹ It thus is interesting to compare the general orientation of a joint ministerial report on the protection of vulnerable people, hereafter the joint ministerial report² with that of the NICE guideline on Decision-making and mental capacity³, hereafter the NICE guideline. These documents have both been published in 2018, address the same concern (1), and follow two different approaches (2).

1 The same concern

French and English laws aim at protecting the vulnerable major without incapacitating him (1.1). This requires to counterbalance the tendency to give the power to decide to someone capable (1.2).

1.1 Protecting without incapacitating

Since 2007, French law and the French government have been promoting necessity, subsidiarity, and proportionality principles in the context of incapacity to ensure that vulnerable people are not protected by the most restrictive incapacity regime without prior consideration of alternative solutions.⁴ French law changed in 2007 in order not to allow the wardenship judge to start proceedings to place someone under judiciary protection.⁵ Practice has unfortunately not evolved to pay a much greater attention to the principle of subsidiarity.⁶ Hence, Article 431 of the French civil code in its 2019 version states that third parties who request judiciary protection and are not close relatives according to the list provided by Article 430 of the said code should mention the social and financial situation of the vulnerable person as well as his situation regarding his autonomy and list measures that have been taken to assist this person. As one can see, the French legislator wants to make sure that everyone considers the person and requests judiciary protection after having tried other options. The 2019 version of Article 459 of the French civil code expressly favours family assistance through habilitation familiale over tutorship that is the most restrictive, court-based protection regime.

Principle 4 of Section 1 of the Mental Capacity Act 2005 provides that A person is not to be treated as unable to make a decision merely because he makes an unwise decision. This provision examines incapacity from a totally different perspective than that of French law. It does not say only how a person can be assisted but how a person who is vulnerable can decide and even how he can make an unwise decision.

It has been seen that capacity raises a similar concern in French law and in English law. French law focuses on the impossibility to act whereas English law deals with impaired actions. This difference of perception changes everything as one can see when one examines the way in which a vulnerable person can exercise his rights.

1.2 Safeguarding instead of delegating

Article 458 of the French civil code recognises that some acts are strictly personal and have to be taken by the vulnerable person alone. Other acts stated in Article 459 and following of the said code are highly personal. No solution has been found to improve the way in which a person can freely and with assistance exercise these rights. One can for example regret that the vulnerable person can hardly choose his medical route since the tutor tends to decide everything by following the advice of healthcare services.⁷ The joint ministerial report suggested that a single protection measure should be enacted.⁸ It is a really ambitious suggestion since tutorship would be abolished. The appointed warden would in principle only assist and not act on behalf of the vulnerable person. Nevertheless, as it has been seen, France relies on an impressive administration that tends to have its own practice. The fact is that the warden could still decide to act on behalf of the vulnerable person to take certain acts. Hence, the statutory exception could become the principle of administrative practice. English law aims at supporting an otherwise weak decision.⁹ This orientation does not exist in French law.

Strange as it may seem, it appears that protecting the vulnerable person does not mean the same thing at all across the English Channel. Let us now see that these two different meanings reveal two different approaches.

2 Two different approaches

French incapacity law relies on a structural approach (2.1), while English law focuses on the interest of the vulnerable person (2.2).

2.1 The structure

French law has an overall structural approach of incapacity. The judge can for instance ask a professional to inventory the estate of the vulnerable person.¹⁰ English law also provides extensive provisions about acts that someone may take for the vulnerable person. The part of the Mental Capacity Act 2005 that deals with lasting powers of attorney is extensively developed. It organises powers to do something as in the case of a trust or that of a company. Nevertheless, the organisation of powers is not the main point of the Mental Capacity Act 2005.

Let us see that the English approach is consistent in the field of trusts and estates because of the great attention paid to interest in Equity.

2.2 The interest

Allowing a vulnerable person to make an unwise decision does not amount to looking after his best interest; it is the only way to preserve someone's freedom to make a decision. Section 4 of the Mental Capacity Act 2005 considers the situation in which someone has to make a decision for a vulnerable person since the latter cannot make it. It lists criteria that have to be taken into account when making a decision. This section highlights duties involved in making a decision that has an effect on the situation of someone else. It looks very much like the approach taken in trust cases. Several posts nuance the importance of structure.¹¹ My point is subjective, and I have written here that the fiduciary duty to act in the beneficiary's interest made trusts unique.¹² The discovery of trusts and Equity has influenced my perception and my practice of French law. The lessons that I have learned from Equity help me to keep things simple. Some colleague may wish that law would be more standardised since it would make things easier for the practitioner. Standardisation paves the way to artificial intelligence and to compliance rather than to legal reasoning.¹³ I thus am not sure that standardisation would create new opportunities for qualified practitioners as far as professional development is concerned. Moreover, the French Cour de cassation that is the supreme court that deals with civil, commercial, and criminal cases has recently reminded the general public that making sure that every requirement regarding incapacity has been met during a property sale does not prevent by itself the sale from being annulled for unsoundness of mind.¹⁴ Simple solutions rarely are easy ones.

It has been seen that French law had a structural approach that had some resemblance with the handling of a company through fictive personality whereas English law focused on the vulnerable person's interest.

In brief, a trend favours the autonomy of the vulnerable person on both sides of the English Channel. There are noticeable differences as to how this question is handled because of significant differences in legal culture.

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