Bit niche this, but I see the current Police etc Bill includes a new general power for police (and others) to extract data from electronic devices with the device user’s agreement. I assume this is to fill a lacuna in the current law. But what’s interesting is how it deals with adults who lack capacity to agree. Instead of following an MCA “best interests” approach (and the Scottish and NI equivalent). it lists people who can agree instead - including their parents, any social worker, a representative of any authority or voluntary body caring for them, and (where there’s no-one else) any responsible adult. Anyone else think this looks like slipping back into the paternalism the MCA was meant to get rid of ? (Clauses 36 & 37 of https://bills.parliament.uk/publications/42132/documents/484)
I’d clocked this - it follows an earlier example in the Coronavirus travel regulations in terms of filling in forms. I suspect it may have to do with having something that works across the UK, as there’s no equivalent in Scotland to s.5 MCA: although it’s also questionable whether what it covers would fall within the scope of s.5 MCA in any event. It is also probably important to have an identified person for accountability purposes, but I agree that it feels odd - I also really don’t like “adult lacking capacity” as it sounds status-based, even if the definition does then tie it down to the decision.
Alex Ruck Keene
Barrister
39 Essex Chambers