Thu | Sep 21, 2017

Laws of Eve | Legislation needed to protect vulnerable adults

Published:Monday | January 16, 2017 | 1:00 AMSherry-Ann McGregor

In recent years, I have encountered a number of challenging cases involving adults who are in need of care, but cannot be properly described as mental patients.

One such vulnerable adult was an elderly man who suffered a stroke that affected his mobility. His mental faculties were intact, and he would have been first in line to become the legal guardian of his wife, who was suffering from Alzheimer's disease.

However, because the husband could not physically take charge of his own affairs, he was not a suitable candidate to become his wife's legal guardian under the Mental Health Act.

In cases in which the Mental Health Act can be relied on, the application to appoint a legal guardian does not present many challenges, provided that:

- The court is satisfied that there is a person in need of care.

- The person is suffering from a mental illness and can be considered to be a patient.

- The applicant is the next of kin, and is ordinarily resident in Jamaica.

Where there is an adult who does not have a diagnosed mental condition, the act provides no remedy; and the steps to be taken to obtain a court order to protect that adult become complicated. The same is true if the next of kin of that adult who is in need of care resides outside of Jamaica.

The difficulties lie in the fact that while the court is inherently empowered to intervene to protect vulnerable persons - such as infants, elderly persons and mental patients - there is no specific legislation that deals with such applications. Instead, the applicant relies on the discretion of a judge, although there are no guidelines to which one might refer.

This problem is not unique to Jamaica. Even in the United Kingdom, where there is a Court of Protection in which decisions on financial or welfare matters for people who cannot make those decisions for themselves are made, the same problem was identified.

There are several cases in which the issue was discussed. In one such case, Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, at page 13, Lord Donaldson MR said, "It is because the common law is the great safety net which lies behind all statute law, and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill the gaps is one of the most important duties of the judges."

In a later case Re SA (Vulnerable Adult with Capacity: Marriage)[2006] 1 FLR 867 Justice Munby provided some guidance to help us to identify who might be a vulnerable adult. He said, "[i]n the context of the inherent jurisdiction, I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness, or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind, or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive."

While the judges are usually sympathetic to the plight of vulnerable persons, and the court staff try to ensure that the applications to appoint guardians to protect those persons are heard promptly, there is a need for a specific regime within the courts to deal with matters of this nature. Legislative intervention would also be welcome.

- Sherry-Ann McGregor is a Partner and Mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.