Commentary on Sections Part 2 – Lack of Capacity: Protection from Liability, and Safeguards Chapter 8 – Supplementary Section 59 – Failure by person other than D to take certain steps
Section 59 provides a defence for D in circumstances where supportive steps (i.e. helping P to make a decision for themselves) that would be considered practicable were not taken but due to no fault of D. It also provides that “E” – D’s employer – can be held liable under Part 2 rather than D where another employee of E is responsible for the unreasonable failure to take such steps. For the purposes of this section, a failure to take practicable supportive steps is unreasonable unless at the time the person believes that the steps can be as effectively taken later and that not taking the step immediately is reasonable in the circumstances.