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|Mental Capacity Bill|
These notes refer to the Mental Capacity Bill as introduced in the House of Commons on 17th June 2004 [Bill 120]
MENTAL CAPACITY BILL
1. These explanatory notes relate to the Mental Capacity Bill as introduced in the House of Commons on 17 June 2004. They have been prepared by the Department for Constitutional Affairs in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. The Mental Capacity Bill has its basis in the Law Commission Report No.231 on Mental Incapacity which was published in February 1995 after extensive consultation. The Government consulted further and published a Policy Statement, Making Decisions, in October 1999, setting out proposals to reform the law in order to improve and clarify the decision-making process for people who are unable to make decisions for themselves. On 27 June 2003 the Government published a draft Mental Incapacity Bill and accompanying notes (Cm 5859-I & II) which was subject to pre-legislative scrutiny by a Joint Committee of both Houses. The Joint Committee published their report on the draft Bill on 28 November 2003 (HL Paper 189-I & HC 1083-I). The Government's response to the Joint Committee report was presented to Parliament in February 2004 (Cm 6121).
4. The Bill, now renamed the Mental Capacity Bill, will clarify a number of legal uncertainties and reform and update the current law where decisions need to be made
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on behalf of others. The Bill will govern decision-making on behalf of other adults, both where they lose mental capacity at some point in their lives, for example as a result of dementia or brain injury, and where the incapacitating condition has been present since birth. It covers a wide range of decisions, on personal welfare as well as financial matters and substitute decision-making by attorneys, a court or court-appointed "deputies", and clarifies the position where no such formal process has been adopted. The Bill includes new rules to govern research involving people who lack capacity and provides for a new independent consultee to provide advice in relation to certain decisions. The Bill will provide recourse, where necessary, and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults lacking capacity.
5. The Bill will replace Part 7 of the Mental Health Act 1983 and the Enduring Powers of Attorney Act 1985. A new separate Court of Protection with more comprehensive powers will replace the current Court of Protection, which is an office of the Supreme Court.
6. The Bill refers to the Lord Chancellor, since under current law the Lord Chancellor is to have a range of responsibilities under the Bill. However, the Constitutional Reform Bill, currently before Parliament proposes the abolition of the office of Lord Chancellor. If appropriate, references to the Lord Chancellor will be amended during or after passage of the Bill.
7. The Mental Capacity Bill is divided into 3 parts:
Part 1: Persons who lack capacity:
Part 1 contains provisions defining "persons who lack capacity". It contains a set of key principles, and sets out a checklist to be used in ascertaining a person's best interests. It deals with liability for actions in connection with the care or treatment of a person who lacks capacity to consent to what is done. Part 1 also establishes a new statutory scheme for "lasting" powers of attorney which may extend to personal welfare (including health care) matters. It sets out the jurisdiction of the court to make declarations, orders and appoint substitute decision-makers, "deputies", where a person lacks capacity. This Part also sets out rules about advance decisions to refuse medical treatment and about research involving people who lack capacity. It establishes a system for providing independent consultees for particularly vulnerable people and situations. It provides for Codes of practice to give guidance about the legislation and creates a new criminal offence of neglect or ill-treatment.
Part 2 The Court of Protection and the Public Guardian
Part 2 deals with a new superior court of record, to be known as the Court of Protection, its judges and procedures. It also establishes a new statutory official, the Public Guardian, to support the work of the court. Provision is also made for Court of Protection Visitors.
Part 3: Miscellaneous and General
Part 3 deals with scope, private international law, and transitional and other technical provisions.
COMPATIBILITY WITH ECHR
8. Convention issues arise in relation to a number of provisions in the Mental Capacity Bill, which also meets the state's positive obligation under Article 8 to ensure respect for private life.
9. Article 8 issues in relation to private life and bodily integrity are engaged in connection with clauses 5, 6, 9 and 11 and could also be engaged as a result of a court order made under clause 16(2). Any interference pursues the legitimate aim of protecting the health and wellbeing of the person lacking capacity and ensures that persons who care for and treat persons who lack capacity are protected from certain liabilities where appropriate. The principles in clause 1, the criteria for incapacity (clause 2), the checklist as to best interests (clause 4) and the safeguards within the clauses themselves create a framework within which any interference will be proportionate to this legitimate aim. Article 8 rights may also be engaged by clause 47(7) to(9), which allows the court to direct a medical examination or interview of the person concerned and the examination of his health and social services records: the court is bound by the principles in clause 1 and the best interests checklist. Clauses 34(6),56(5) and(6) and 57(5) and(6) also make provision whereby particular persons may interview the person concerned and examine relevant records. Again, any interference is justifiable as being for the protection of that person's own health and welfare and proportionate to that aim: the powers are given to the relevant officials for the purpose of enabling them to carry out their functions, which are directed to the protection of the incapacitated person's interests.
10. Rights under Article 1 of the First Protocol may be engaged in connection with clauses 7 to 9 and 12 which provide for the control of a person's property and affairs and payment on his behalf for necessary goods and services. The statutory rules are clear and precise and are designed to strike a fair balance between the property interests of the person lacking capacity, his own wider welfare interests and the interests of others (persons supplying necessary goods and services to the person lacking capacity, anyone bearing the cost and, in the case of clause 12, persons related to or connected with him).
11. Clauses 10(2) and 13(8) and (9) prevent a bankrupt from acting as a donee of a lasting power of attorney where the power covers property and affairs and suspend that power where there is an interim bankruptcy restrictions order. Article 8 and Article 14 rights may be engaged but any difference of treatment has the legitimate aim of protecting an incapacitated donor from the possibility of financial abuse, and is proportionate to that end.
12. A donee of an LPA and a court-appointed deputy can be given power to refuse life-sustaining treatment. The patient's Article 2 and Article 3 rights could be engaged. A person can also make an advance decision to refuse treatment, including life-sustaining treatment. Clause 6(6) and clause 26(5) provide that action can be taken to preserve life or prevent serious deterioration while the court resolves any dispute or difficulty. These provisions are designed to provide protection for Article 2 and 3 rights, while also discharging the obligation to respect the Article 8 rights of those who choose to give powers to a donee under an LPA, or make an advance decision.
13. Clauses 34 to 37 may engage Article 14 rights in connection with Article 8 by providing for an independent consultee service enabling advice to be given about a person's best interests where that person lacks capacity, is being treated and cared for by the NHS or a local authority and there is no-one who could be consulted about his best interests. Any relevant difference in treatment which there might be would have the legitimate aim of protecting the Article 8 rights of incapacitated persons who are not befriended.
14. The comprehensive jurisdiction of the new Court of Protection (clauses 15 to21 and 43 to 54) ensures protection for any Article 6 rights engaged in connection with the provisions of the Bill. The Government is satisfied that clauses 48 (certain applicants to require permission to apply), 49(2)(d) (exercise of jurisdiction by officers or staff) and 52 (court fees) do not breach Article 6 rights.
15. The Bill extends only to England and Wales. Similar legislation has already been passed in Scotland in the form of the Adults with Incapacity (Scotland) Act 2000.
COMMENTARY ON CLAUSES
PERSONS WHO LACK CAPACITY
Clause 1: The principles
16. This sets out key principles applying to decisions and actions carried out under the Mental Capacity Bill. The starting point is a presumption of capacity. A person must be assumed to have capacity until it is proved otherwise. A person must also be supported to make his or her own decision, as far it is practicable to do so. The Bill requires "all practicable steps" to be taken to help the person. This could include, for example, providing information relevant to decision in a simple format, making sure the person is in an environment he is comfortable in or involving an expert in helping the person express his views. It is expressly provided that a person is not to be treated as lacking capacity to make a decision simply because he makes an unwise decision. This means that people have the right to make irrational or eccentric decisions that others may not judge to be in their best interests if they have the necessary ability to make the decision (according to clause 3). Everything done, or decision made, under the Bill for a person who lacks capacity is to be done in that person's best interests - this best interests principle is expanded upon in clause 4. In addition, the "least restrictive option" principle must always be considered. This means that the person making the decision or acting must think whether it is possible to decide or act in a way that would interfere less with the person's rights and freedom of action.
Clause 2: Persons who lack capacity
17. This sets out the Bill's definition of a person who lacks capacity. It focuses on the particular time when a decision has to be made and on the particular matter to which the decision relates, not on any theoretical ability to make decisions generally. It follows that a person can lack capacity for the purposes of the Bill even if the loss of capacity is partial, temporary or if his capacity fluctuates. And that a person may lack capacity in relation to one matter but not in relation to another matter.
18. The inability to make a decision must be caused by an impairment of or disturbance in the functioning of the mind or brain. This is the so-called "diagnostic test". This could cover a range of problems, such as psychiatric illness, learning disability, dementia, brain damage or even a toxic confusional state, as long as it has the necessary effect on the functioning of the mind or brain, which causes the person to be unable to make a decision.
19. Subsection (4) makes it clear that powers under the Bill generally only arise where the person lacking capacity is 16 or over (although powers in relation to property might be exercised in relation to a younger person who has disabilities which will cause the incapacity to last into adulthood, see clause 18(3)). Any overlap with the Children Act 1989 jurisdiction can be dealt with by orders about the transfer of proceedings to the more appropriate court (see clause 21).
20. Subsection (4) has the first use of the capital letter "P" to refer to a person who lacks capacity, and of the capital letter "D" to refer to a person exercising powers in relation to P. The use of capital letters sometimes makes complex provisions much easier to follow, and is a technique often adopted in recent legislation. In this Bill, the fact that lack of capacity is specific to particular decisions makes it inappropriate to use any general description or label for the person concerned.
Clause 3: Inability to make decisions
21. This sets out the test for assessing whether a person is "unable to make a decision" and therefore lacks capacity. It is a "functional" test, looking at the decision-making process itself. There are four reasons why a person may be unable to make a decision. The first three (subsection (1)(a) to (c)) will cover the vast majority of cases. To make a decision, a person must first comprehend the information relevant to the decision (further defined in subsection (3)), secondly retain this information (for long enough to make the decision, as explained in subsection (2)) and thirdly use and weigh it to arrive at a choice. If the person cannot undertake one of these three aspects of the decision-making process then he is unable to make the decision.
22. Subsection (1)(d) provides for the fourth situation where someone is unable to make a decision because he cannot communicate it in any way. This is intended to be a residual category and will only affect a small group of persons, in particular some of those with the very rare condition of "locked-in syndrome". It seems likely that people suffering from this condition can in fact still understand, retain and use information so would not be regarded as lacking capacity under subsection (1)(a) to (c). Some of these people can communicate by blinking an eye, but it seems that others cannot communicate at all. Subsection (1)(d) treats those who are completely unable to communicate their decisions as unable to make a decision. Any residual ability to communicate (such as blinking an eye to indicate "yes" or "no" in answer to a question) would exclude a person from this test.
Clause 4: Best interests
23. It is a key principle of the Bill that all steps and decisions taken for someone who lacks capacity must be taken in the person's best interests. The best interests principle is an essential aspect of the Bill and builds on the common law while offering more precise guidance. All those acting under the Bill will have to work through the checklist of factors in this clause each time they make a decision in relation to someone who lacks capacity. As subsection (1) makes clear, determining "best interests" requires a consideration of all relevant circumstances and the checklist of factors is not a definition, nor is it exhaustive. The checklist does, however, require a focus on certain key factors that will always be worthy of attention.
24. The decision-maker must consider whether the individual in question is likely to have capacity at some future date (subsection (3)). This is in case the decision can be put off until the person can make it himself. Even if the decision cannot be put off the decision is likely to be influenced by whether the person will always lack capacity or is likely to regain capacity.
25. Subsection (4) stresses that the person concerned must always be involved in the process. Even where a person lacks capacity he should not be cut out of the decision-making process.
26. The decision-maker must also consider, as far as is reasonably ascertainable, the "past and present wishes and feelings" of the person who lacks capacity (subsection (5)). Even where people cannot make their own decisions, they can express preferences and feelings which should be taken seriously. For those who have lost capacity which they once had (for example because of progressive dementia) it may be particularly important to consider past wishes and feelings as well as current ones. Oral or written statements about what sort of medical treatment they would wish to have in the case of future illness would be an example (even where such statements do not qualify as advance decisions to refuse treatment within the meaning of clause 24). There must also be consideration of the person's beliefs and values - religious beliefs, cultural values and lifestyle choices are obvious aspects of this. There may also be other factors that the person would have been likely to consider if able to do so. For example, a person with capacity will often consider emotional bonds or family obligations when deciding how to spend his money or where to live.
27. Subsection (6) stresses that others will often have important information and views as to what would be in the person's best interests, as well as his past and present wishes and feelings, his beliefs and values and other factors they would have considered. The decision-maker should approach anyone the person has named as someone to consult, anyone who has a caring role or is interested in the welfare of the person concerned. This will include informal carers, family and friends and others who care for the person in a professional or voluntary capacity. Anyone appointed under a lasting power of attorney and any deputy appointed by the court (dealt with later in Part 1) should also be consulted. Consultation is required where it is "practicable and appropriate". For example, no consultation may be possible in an emergency situation and it might not be appropriate for every day-to-day decision such as whether to watch television. For significant, non-urgent, decisions, including where there is a serious of minor decisions that cumulatively become significant, consultation will be required, as being both practicable and appropriate.
28. Subsection (7) applies the best interests principle to situations where the person concerned may not lack capacity. A donee might be acting under a lasting power of attorney while the donor still has capacity. The subsection makes clear that the obligation also applies where the person concerned does not in fact lack capacity but where the other person reasonably believes the person lacks capacity. There would otherwise be a lacuna in the applicability of the 'best interests' obligation.
29. Subsection (8) offers appropriate protection to those who act in the reasonable belief that they are doing so in the other person's best interests. It should be remembered that "reasonable belief" is an objective test. Where the court makes a decision it must of course be satisfied that its decision is indeed in the person's best interests.
Clause 5: Acts in connection with care or treatment
30. This offers statutory protection against liability for certain acts done in connection with the care or treatment of another person. If an act qualifies as a "section 5 act" then a carer can be confident that he will not face civil liability or criminal prosecution. Civil liability could involve being sued for committing a tort such as battery, false imprisonment or breach of confidence. Criminal prosecution might be for an offence against the person (assault or causing actual bodily harm) or for an offence against property (theft or taking a motor vehicle). The aim is to clarify aspects of the common law principle of necessity as it applies to key actions done for people who lack capacity.
31. A qualifying "section 5 act" may be performed by a range of people on any one day. The key requirements are that the person ("D") acts in connection with the care or treatment of another person ("P") and that D has formed a reasonable belief as to P's lack of capacity and best interests.
32. D will not incur any liability which would not have arisen if P, with capacity to do so, had in fact consented to D's act. Consent is a complete defence to a wide range of torts (battery, false imprisonment, trespass to land or goods, breach of confidence) and to many criminal offences against the person or against property. Many people who are fully capable will regularly consent (expressly or impliedly) to others touching them, lock the doors of a car or dealing with their property. If a person took someone else's unwanted clothes to the charity shop then that person could in principle face civil liability for trespass to goods or criminal prosecution for theft in the absence of the owner's consent. This clause offers protection against liability where the owner (P) is unable to give a valid consent, as long as the step is taken in connection with caring for P and is in P's best interests.
33. Consent is not a defence to a claim in the tort of negligence. There are some criminal offences which depend on a finding of negligence as defined in civil law (most notably, manslaughter where the element of unlawful killing may be made out by grossly negligent behaviour, whether an act or an omission to act in breach of duty). Consent might be relevant to issues of contributory negligence. Subsection (3) therefore makes it clear that liability for negligence is unaffected by the clause.
34. This clause does not affect the operation of advance decisions to refuse treatment, as covered by clauses 24-26. If a person has made a valid and applicable advance decision then that takes priority over the rules in this clause.
Clause 6: Section 5 limitations
35. This sets two limitations to "section 5 acts". Subsections (1)-(4) deal with restraint, which is defined as the use or threat of force where P is resisting and any restriction of liberty of movement. This will include actions such as pulling someone away from the road, putting a seat belt on someone in a car or administering sedatives in order to undertake treatment. Restraint can only be used when the person using it reasonably believes it is necessary to prevent harm to P. The restraint used must be proportionate both to the likelihood of the harm and the seriousness of the harm. It follows that the minimum level of restraint must be used and if the risk of harm diminishes, so the restraint used must be reduced. It should be remembered that the principles in clause 1, and the requirements in clause 5, also apply when restraint is proposed. The principle of the "least restrictive option" in clause 1(6) is likely to be particularly significant here.
36. The second limitation is in subsection (5) and makes it clear that a valid decision by an attorney or a deputy takes priority over any action which might be taken under clause 5. However, there is a proviso to the limitation about the authority of an attorney or deputy. There could be a dispute or difficulty over a decision made by an attorney or deputy. For example, a doctor might be concerned that the attorney is not acting (as all attorneys must) in P's best interests. Subsection (6) makes it clear that action can be taken to sustain life or prevent serious deterioration while any such dispute is referred to the court.
Clause 7: Payment for necessary goods and services
37. This revises and extends the statutory rule in section 3(2) of the Sale of Goods Act 1979 insofar as it applies to people who lack capacity to contract. In general, a contract entered into by a person who lacks capacity to contract is voidable if the other person knew or must be taken to have known of the lack of capacity. This does not apply if "necessaries" are supplied - in those circumstances the person lacking capacity must still pay a reasonable price. The rule in section 3(2) of the 1979 Act only applies to "necessary" goods, but there is a matching common law rule about "necessary" services. The clause combines these rules to set out a single statutory rule to cover "necessary" goods and services. Subsection (2) repeats the established legal definition of what is 'necessary'. Thus, for example, if the milkman carries on delivering milk to the house of someone who has a progressive dementia, they can expect to be paid. If, however, a roofer puts a completely unnecessary new roof on to that person's house, when all that was required was a minor repair, then the rule will not apply.
Clause 8: Expenditure
38. This is to be read with clauses 5 and 7. If a person acting under clause 5 arranges something for P's care or treatment that costs money then the person can promise that P will pay, use money which P has in his possession, pay himself back from P's money in his possession or consider himself owed by P. This restates existing common law rules which provide that a person acting as an "agent of necessity" for another person should not be out of pocket as a result. A carer might, acting in P's best interests, arrange the delivery of disability aids or household items. Nothing in this clause allows a carer to gain access to P's funds where they are held by a third party such as a bank or building society. The bank or building society would remain bound by contractual obligations to P until formal steps were taken (for example, registering a relevant power of attorney, or obtaining a court order).
39. Subsection (3) recognises that some people may have control over P's money or property by other routes, for example under the Social Security Regulations or by way of banking arrangements. An attorney or a deputy appointed by the court will have lawful control of P's money within the meaning of paragraph (a).
Lasting powers of attorney
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