On 27th October 1999, Lord Irvine, the Lord Chancellor, announced the reform of the law relating to mentally incapacitated adults, in their paper 'Making Decisions'.
A NEW TEST OF CAPACITY
There will be a new statutory definition of incapacity - based on propositions made by the Law Commission. There will be a statutory presumption against lack of capacity. It would be presumed that people can make their own decisions unless it is proved that they are unable to do so. This follows the principal that intervention into peoples lives should be kept to a minimum.
BEST INTERESTS
There will be Statutory guidance as to how the best interests of mentally incapacitated people should be determined and normally based on the fullest possible participation of the individuals concerned, the views of those who care for them and the prospects of their recovering mental capacity.
GENERAL AUTHORITY TO ACT REASONABLY
Further legislation will provide carers with a general authority to act reasonably for personal, welfare or healthcare decisions of a mentally incapacitated person
CONTINUING POWER OF ATTORNEY
The current system of Enduring Powers of Attorneys (EPA) will be replaced by a new Continuing Power of Attorney (CPA).
A CPA would enable a person to delegate decision-making powers on matters of Finance, Healthcare, Personal Welfare. CPA's will therefore be wider in scope than existing EPA's as they limit an attorney's powers to financial affairs only.
- Safeguards to be set up as to the form and manner of execution of CPA's, procedural requirements and restrictions on who may be an attorney.
- Compulsory registration system for all CPA's and a registering authority.
What happens to existing EPA's?
It will not be possible to convert an existing financial EPA into a CPA. Transitional arrangements are to be established.
The future role of the Court of Protection?
The government has decided that there will be a new single Court Jurisdiction, which deals with all areas of decision making for adults without mental capacity. It will incorporate the Court of Protection which is currently based in London within this Jurisdiction but it shall have a regional structure to ensure accessibility throughout the country.
The new Court will be led by a designated senior Judge. High Court, Circuit and District Judges will be assigned to the Court and healthcare, welfare and disputed financial cases involving the mentally incapacitated will be dealt with in the regions as well as in London.
Power Of New Court
- To determine questions about the mean and affect of a CPA.
- To revoke a CPA on the grounds of unsuitability of an attorney.
- To make decision on behalf of a person without capacity.
- To appoint a Manager to make decisions on behalf of the person without capacity.
- To make declarations about capacity.
- To approve or refuse approval to particular forms of healthcare.
- Obtaining access to healthcare records.
- Require person responsible for the healthcare of the patient to allow a different person to take over the healthcare of that patient.
HOW WILL WITHDRAWAL OF TREATMENT CASES BE DEALT WITH?
The government has decided that in serious cases of healthcare decisions such as the withdrawal of artificial nutrition and hydration from a patient in a permanent vegetative state or similar condition and questions of treatment by the patients made in advance statements should remain a matter for the Court and should not be able to delegated to a manager.
The government has decided that a number of issues should not be taken forward at this time. These include:-
- Advance statements about healthcare (Living wills).
- Public law protection for people at risk. The absence of proposals in relation to people at risk should be compared to the situation in Scotland where progress seems to have been made and where there will in fact soon be law protecting these people.
The government has decided in "who decides?" not to proceed with incorporating living wills into the new legislation. The government made clear its stance that euthanasia is and will remain illegal. The Lord Chancellor clarified that the government's feelings were that the current case law on right to refuse or withdraw consent to medical treatment was sufficiently clear to provide guidance at this time. However, the government states that it intends to continue to keep the subject under consideration in the light of future medical and legal developments.
This article is only intended to provide a brief synopsis of the governments new proposal and full copies of the report making decisions. (CM4465) is available from:- The Lord Chancellors Department website: www.open.gov.uk/lcd
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