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What happens when the remedy is not in the statute?

Published:Monday | October 13, 2014 | 12:00 AM

As a lawyer, there are times when you become comfortable about a particular area of law that you may feel that you can handle any issue that could arise in that area ... and then you receive a curve ball. You are faced with a set of circumstances that forces you to take a much closer look at the laws you thought you knew so well, and dig much deeper to find a solution to the problem that confronts you.

I have had two such experiences in recent times involving the care and protection of elderly persons (I will refer to them as 'patients' below); which is an area that I felt I knew inside out.

In the first scenario, a Jamaican man who lived and worked in Jamaica for his entire life went to the USA for a visit and became seriously ill. In fact, his doctors have confirmed that the effects of a series of strokes he has had have rendered him permanently incapable of caring for his needs. Under the relevant legislation in Florida, the patient's sister was appointed as his legal guardian.

As his legal guardian, the patient's sister would have had the right to manage all his financial affairs, including the sale of his property, so that funds are available to take care of him. However, she encountered one major obstacle in that the patient's assets are all in Jamaica, and no financial institution in Jamaica would accept an order made in a Florida court as being valid and enforceable in Jamaica. Moreover, as both the patient and his guardian were outside Jamaica, how could the provisions of the Mental Health Act avail them?

Gaps in our laws

In the second case, the patient's daughter wanted to be appointed as her guardian although the patient's husband was still alive. Under the Mental Health Act, the patient's husband would be first in line to be appointed as her guardian, and the court could only accept a child as being the nearest relative if "there was no husband".

You may have immediately wondered, "Why not appoint the husband as the guardian?" The answer is that the husband, although not suffering from a mental disorder, was older than his wife (92 years old) and physically incapable of caring for her needs or his own. He was also fully dependent on their daughter and required 24-hour nursing care.

Faced with this challenge, I had to appreciate that there are some gaps in our laws in relation to the care of elderly persons. Although the Mental Health Act makes provision for the appointment of a guardian to care for the needs of a person who is suffering from a mental disorder, there is no legislation that makes specific provision to appoint a guardian to care for the needs of an adult who is physically impaired. The problem is that an adult's physical impairment could make him or her vulnerable, more likely to be abused or subject to adverse treatment that could lead to mental impairment.

In both matters, the obstacles to appointing legal guardians for the patients were overcome, because Jamaica is a common law jurisdiction and a judge of the Supreme Court, like The Lord Chancellor in the High Court of Chancery, accepts the maxim that, "Equity will not suffer a wrong to be without a remedy". However, in the process of my research, I discovered that Jamaica is not alone when it comes to deficiencies in the law in relation to the care of mentally ill or otherwise vulnerable adults; and for those who wish to learn more about the problem and the possible solutions, the case of DL v A Local Authority and Others [2012] EWCA Civ 253 provides a good starting point.

When we identify gaps such as these in our laws, it is very important to address them so that all persons who require legal solutions can feel a greater sense of certainty as to where that solution lies. Let us hope that the relevant minister or other interest group will lobby for changes so that these gaps can be filled.