DRAFT MENTAL INCAPACITY BILL JUNE 2003
On the 27th June 2003, the Government launched for consultation the draft Mental Incapacity Bill. This Bill follows the Green Paper - "Who Decides?" and the White Paper - "Making Decisions" published in 1997 and 1999 respectively.
The Key Principles
Lack of capacity relates to each decision to be taken
The Bill lays out a single definition of capacity that requires capacity to be assessed according to each decision that needs to be taken.
For example, an individual may be quite capable of deciding where they would like to live but incapable of deciding to sell his or her house.
Best interests
The overriding principle that must guide all decisions made on behalf of someone lacking capacity is their best interests.
There is a checklist of factors that decision makers must work through in considering best interests. The checklist includes: considering whether the person is likely to regain capacity in the future, past and present wishes and views of others concerned in the person who lacks capacity.
Informal decision-making
General authorities to act for someone who lacks capacity where it is reasonable for the person taking the action to do so and the act is in the person's best interests. No formal powers necessary.
Example: short term practical assistance, someone suffering from a relapse, e.g. if an adult with a severe learning disability required dental treatment and could not consent to the treatment, the dentist could lawfully treat the patient.
There is a restriction on general authorities who will be "trumped" by a lasting power of attorney/deputy or advanced decision.
Formal decision making powers
Most of the day-to-day care of adults who lack capacity will take place under the general authority with no need for any formal decision making authority. Formal decision making powers can be acquired or granted.
Lasting Powers of Authority (LPAs)
To allow people to appoint an attorney to act on their behalf if they should lose capacity in the future - to deal with welfare/healthcare and financial matters.
The LPA must be created whilst the person has full mental capacity.
Court appointed deputies
To replace the current system of receiverships in the Court of Protection - to make decisions on welfare/healthcare and financial matters. Where a deputy is required and none has been appointed and the person has lost capacity then one can be appointed by the court.
Single Orders of the Court
Permission to go to court for a single Order enabling a particular decision in question to be resolved. Necessity to prove that it is not possible to resolve the matter without going to court.
Advanced decisions to refuse treatment
The Bill seeks to codify the current common law position on advanced decisions to refuse treatment whilst at the same time increasing the safeguards attached to them. An advanced decision must be made whilst the person has capacity, it must not have been withdrawn or altered and it must be shown to be both "valid" at the time when the decision needs to be taken and "applicable" to the actual situation.
To be valid the person must not have acted in a way since the advanced decision was made that clearly demonstrates that his views are now inconsistent with that of the advanced decision. There must be no circumstances at the time the decision is to be applied that would have caused the person to make a different advanced decision if he had been able to foresee those circumstances.
The New Court of Protection
Proposal to merge the current Court of Protection and the inherent jurisdiction of the High Court to oversee all areas of decision making for adults who lack capacity. The Court of Protection has:
- Strong regional presence.
- Centralised administration office and registry.
- Responsibility for clearing all issues covered by the draft Bill.
- Superior Court of Record able to establish precedent.
- The power to remove attorneys and deputies who have acted improperly.
- Is Informal and non-technical.
The New Public Guardian
The new statute for referring work would be supported by public guardian to have a number of functions:
-Registering authority for lasting powers of attorney and deputies.
-Supervised attorneys and deputies.
-To provide information to help the court in its decisions.
Criminal Offences
Creation of new criminal offence when attorney or deputy or someone who has care of a person who lacks capacity ill treats or wilfully neglects a person who lacks capacity.
Offence of concealing or destroying an advanced decision to refuse treatment - important because unlike Lasting Powers of Authority, advanced decisions will not have to be registered.
Non-registration allows advanced decisions to be made orally and to be made shortly before their intended affect.
The Road to Mental Incapacity
The draft Bill will now be presented to the Joint Committee of Members of the House of Commons and the Lords. Surprisingly, the Bill was not mentioned in the Queen's Speech in November 2003. This is likely to be because of substantial opposition to the proposals from a variety of organisations.
If you believe that you might have a legal claim relating to Draft Mental Incapacity Bill , please complete the online enquiry form or call 0870 024 0558. Your enquiry will be forwarded to a solicitor who specialises in Draft Mental Incapacity Bill .
If you have any comments in relation to Draft Mental Incapacity Bill , please use the online discussion forum.
The staff of Alexander Harris are very understanding, polite and their professionalism was second to none: Anthony, Rochdale
