Mental Capacity Bill

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 1 — Persons who lack capacity
1

A
Bill
[AS AMENDED IN STANDING COMMITTEE A]
To
make new provision relating to persons who lack capacity; to establish a
superior court of record called the Court of Protection in place of the office of
the Supreme Court called by that name; to make provision in connection with
the Convention on the International Protection of Adults signed at the Hague
on 13th January 2000; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Persons who lack capacity
The principles
1
The principles
(1)
The following principles apply for the purposes of this Act.
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(2)
A person must be assumed to have capacity unless it is established that he lacks
capacity.
(3)
A person is not to be treated as unable to make a decision unless all practicable
steps to help him to do so have been taken without success.
(4)
A person is not to be treated as unable to make a decision merely because he
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makes an unwise decision.
(5)
An act done, or decision made, under this Act for or on behalf of a person who
lacks capacity must be done, or made, in his best interests.

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Mental Capacity Bill
Part 1 — Persons who lack capacity
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(6)
Before the act is done, or the decision is made, regard must be had to whether
the purpose for which it is needed can be as effectively achieved in a way that
is less restrictive of the person’s rights and freedom of action.
Preliminary
2
People who lack capacity
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(1)
For the purposes of this Act, a person lacks capacity in relation to a matter if at
the material time he is unable to make a decision for himself in relation to the
matter because of an impairment of, or a disturbance in the functioning of, the
mind or brain.
(2)
It does not matter whether the impairment or disturbance is permanent or
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temporary.
(3)
In proceedings under this Act or any other enactment, any question whether a
person lacks capacity within the meaning of this Act must be decided on the
balance of probabilities.
(4)
No power which a person (“D”) may exercise under this Act—
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(a)
in relation to a person who lacks capacity, or
(b)
where D reasonably thinks that a person lacks capacity,

is exercisable in relation to a person under 16.
(5)
Subsection (4) is subject to section 18(3).
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Inability to make decisions
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(1)
For the purposes of section 2, a person is unable to make a decision for himself
if he is unable—
(a)
to understand the information relevant to the decision,
(b)
to retain that information,
(c)
to use or weigh that information as part of the process of making the
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decision, or
(d)
to communicate his decision (whether by talking, using sign language
or any other means).
(2)
The fact that a person is able to retain the information relevant to a decision for
a short period only does not prevent him from being regarded as able to make
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the decision.
(3)
The information relevant to a decision includes information about the
reasonably foreseeable consequences of—
(a)
deciding one way or another, or
(b)
failing to make the decision.
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4
Best interests
(1)
In determining for the purposes of this Act what is in a person’s best interests,
the person making the determination must consider all the circumstances
appearing to him to be relevant.
(2)
In particular, he must take the following steps.
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(3)
He must consider—
(a)
whether it is likely that the person will at some time have capacity in
relation to the matter in question, and
(b)
if it appears likely that he will, when that is likely to be.
(4)
He must, so far as reasonably practicable, permit and encourage the person to
5
participate, or to improve his ability to participate, as fully as possible in any
act done for him and any decision affecting him.
(5)
He must consider, so far as is reasonably ascertainable—
(a)
the person’s past and present wishes and feelings,
(b)
the beliefs and values that would be likely to influence his decision if he
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had capacity, and
(c)
the other factors that he would be likely to consider if he were able to
do so.
(6)
He must take into account, if it is practicable and appropriate to consult them,
the views of—
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(a)
anyone named by the person as someone to be consulted on the matter
in question or on matters of that kind,
(b)
anyone engaged in caring for the person or interested in his welfare,
(c)
any donee of a lasting power of attorney granted by the person, and
(d)
any deputy appointed for the person by the court,
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as to what would be in the person’s best interests and, in particular, as to the
matters mentioned in subsection (5).
(7)
The duties imposed by subsections (1) to (6) also apply in relation to the
exercise of any powers which—
(a)
are exercisable under a lasting power of attorney, or
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(b)
are exercisable by a person under this Act where he reasonably believes
that another person lacks capacity.
(8)
In the case of an act done, or a decision made, by a person other than the court,
there is sufficient compliance with this section if (having complied with the
requirements of subsections (1) to (6)) he reasonably believes that what he does
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or decides is in the best interests of the person concerned.
5
Acts in connection with care or treatment
(1)
If a person (“D”) does an act in connection with the care or treatment of another
person (“P”), the act is one to which this section applies if—
(a)
before doing the act, D takes reasonable steps to establish whether P
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lacks capacity in relation to the matter in question, and
(b)
when doing the act, D reasonably believes—
(i)
that P lacks capacity in relation to the matter, and
(ii)
that it will be in P’s best interests for the act to be done.
(2)
D does not incur any liability in relation to the act that he would not have
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incurred if P—
(a)
had had capacity to consent in relation to the matter, and
(b)
had consented to D’s doing the act.
(3)
Nothing in this section excludes a person’s civil liability for loss or damage, or
his criminal liability, resulting from his negligence in doing the act.
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(4)
Nothing in this section affects the operation of sections 24 to 26 (advance
decisions to refuse treatment).
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Section 5 acts: limitations
(1)
If D does an act that is intended to restrain P, it is not an act to which section 5
applies unless two further conditions are satisfied.
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(2)
The first condition is that D reasonably believes that it is necessary to do the act
in order to prevent harm to P.
(3)
The second is that the act is a proportionate response to—
(a)
the likelihood of P’s suffering harm, and
(b)
the seriousness of that harm.
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(4)
For the purposes of this section D restrains P if he—
(a)
uses, or threatens to use, force to secure the doing of an act which P
resists, or
(b)
restricts P’s liberty of movement, whether or not P resists.
(5)
Section 5 does not authorise a person to do an act which conflicts with a
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decision made, within the scope of his authority and in accordance with this
Part, by—
(a)
a donee of a lasting power of attorney granted by P, or
(b)
a deputy appointed for P by the court.
(6)
But nothing in subsection (5) stops a person—
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(a)
providing life-sustaining treatment, or
(b)
doing any act which he reasonably believes to be necessary to prevent
a serious deterioration in P’s condition,

while a decision as respects any relevant issue is sought from the court.
(7)
“Life-sustaining treatment” means treatment which in the view of a person
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providing health care for P is necessary to sustain life.
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Payment for necessary goods and services
(1)
If necessary goods or services are supplied to a person who lacks capacity to
contract for the supply, he must pay a reasonable price for them.
(2)
“Necessary” means suitable to a person’s condition in life and to his actual
30
requirements at the time when the goods or services are supplied.
8
Expenditure
(1)
If an act to which section 5 applies involves expenditure, it is lawful for D—
(a)
to pledge P’s credit for the purpose of the expenditure, and
(b)
to apply money in P’s possession for meeting the expenditure.
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(2)
If the expenditure is borne for P by D, it is lawful for D—
(a)
to reimburse himself out of money in P’s possession, or
(b)
to be otherwise indemnified by P.
(3)
Subsections (1) and (2) do not affect any power under which (apart from those
subsections) a person—
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(a)
has lawful control of P’s money or other property, and
(b)
has power to spend money for P’s benefit.
Lasting powers of attorney
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Lasting powers of attorney
(1)
A lasting power of attorney is a power of attorney under which the donor (“P”)
5
confers on the donee (or donees) authority to make decisions about all or any
of the following—
(a)
P’s personal welfare or specified matters concerning P’s personal
welfare, and
(b)
P’s property and affairs or specified matters concerning P’s property
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and affairs,

and which includes authority to make such decisions in circumstances where
P no longer has capacity.
(2)
A lasting power of attorney is not created unless—
(a)
section 10 is complied with,
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(b)
an instrument conferring authority of the kind mentioned in subsection
(1) is made and registered in accordance with Schedule 1, and
(c)
at the time when P executes the instrument, P has reached 18 and has
capacity to execute it.
(3)
An instrument which—
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(a)
purports to create a lasting power of attorney, but
(b)
does not comply with this section, section 10 or Schedule 1,

confers no authority.
(4)
The authority conferred by a lasting power of attorney is subject to—
(a)
the provisions of this Act and, in particular, section 4 (best interests),
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and
(b)
any conditions or restrictions specified in the instrument.
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Appointment of donees
(1)
A donee of a lasting power of attorney must be—
(a)
an individual who has reached 18, or
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(b)
if the power relates only to P’s property and affairs, either such an
individual or a trust corporation.
(2)
An individual who is bankrupt may not be appointed as donee of a lasting
power of attorney in relation to P’s property and affairs.
(3)
Subsections (4) to (7) apply in relation to an instrument under which two or
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more persons are to act as donees of a lasting power of attorney.
(4)
The instrument may appoint them to act—
(a)
jointly, or
(b)
jointly and severally.
(5)
If it does not specify whether they are to act jointly or jointly and severally, the
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instrument is to be assumed to appoint them to act jointly.

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(6)
If they are to act jointly, a failure, as respects one of them, to comply with the
requirements of subsection (1) or (2) or Part 1 or 2 of Schedule 1 prevents a
lasting power of attorney from being created.
(7)
If they are to act jointly and severally, a failure, as respects one of them, to
comply with the requirements of subsection (1) or (2) or Part 1 or 2 of Schedule
5
1—
(a)
prevents the appointment taking effect in his case, but
(b)
does not prevent a lasting power of attorney from being created in the
case of the other or others.
(8)
An instrument used to create a lasting power of attorney—
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(a)
cannot give the donee (or, if more than one, any of them) power to
appoint a substitute or successor, but
(b)
may itself appoint a person to replace the donee (or, if more than one,
any of them) on the occurrence of an event mentioned in section
13(6)(a) to (d) which has the effect of terminating the donee’s
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appointment.
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Lasting powers of attorney: restrictions
(1)
A lasting power of attorney does not authorise the donee (or, if more than one,
any of them) to do an act that is intended to restrain P, unless three conditions
are satisfied.
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(2)
The first condition is that P lacks, or the donee reasonably believes that P lacks,
capacity in relation to the matter in question.
(3)
The second is that the donee reasonably believes that it is necessary to do the
act in order to prevent harm to P.
(4)
The third is that the act is a proportionate response to—
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(a)
the likelihood of P’s suffering harm, and
(b)
the seriousness of that harm.
(5)
For the purposes of this section, the donee restrains P if he—
(a)
uses, or threatens to use, force to secure the doing of an act which P
resists, or
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(b)
restricts P’s liberty of movement, whether or not P resists,

or if he authorises another person to do any of those things.
(6)
Where a lasting power of attorney authorises the donee (or, if more than one,
any of them) to make decisions about P’s personal welfare, the authority—
(a)
does not extend to making such decisions in circumstances other than
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those where P lacks, or the donee reasonably believes that P lacks,
capacity,
(b)
is subject to sections 24 to 26 (advance decisions to refuse treatment),
and
(c)
extends to giving or refusing consent to the carrying out or
40
continuation of a treatment by a person providing health care for P.
(7)
But subsection (6)(c)—
(a)
does not authorise the giving or refusing of consent to the carrying out
or continuation of life-sustaining treatment, unless the instrument
contains express provision to that effect, and
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(b)
is subject to any conditions or restrictions in the instrument.
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Scope of lasting powers of attorney: gifts
(1)
Where a lasting power of attorney confers authority to make decisions about
P’s property and affairs, it does not authorise a donee (or, if more than one, any
of them) to dispose of the donor’s property by making gifts except to the extent
5
permitted by subsection (2).
(2)
The donee may make gifts—
(a)
on customary occasions to persons (including himself) who are related
to or connected with the donor, or
(b)
to any charity to whom the donor made or might have been expected
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to make gifts,

if the value of each such gift is not unreasonable having regard to all the
circumstances and, in particular, the size of the donor’s estate.
(3)
“Customary occasion” means—
(a)
the occasion or anniversary of a birth, marriage or the formation of a
15
civil partnership, or
(b)
any other occasion on which presents are customarily given within
families or among friends or associates.
(4)
Subsection (2) is subject to any conditions or restrictions in the instrument.
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Revocation of lasting powers of attorney etc.
20
(1)
This section applies if—
(a)
P has executed an instrument with a view to creating a lasting power of
attorney, or
(b)
a lasting power of attorney is registered as having been conferred by P,

and in this section references to revoking the power include revoking the
25
instrument.
(2)
P may, at any time when he has capacity to do so, revoke the power.
(3)
P’s bankruptcy revokes the power so far as it relates to P’s property and affairs.
(4)
But where P is bankrupt merely because an interim bankruptcy restrictions
order has effect in respect of him, the power is suspended, so far as it relates to
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P’s property and affairs, for so long as the order has effect.
(5)
The occurrence in relation to a donee of an event mentioned in subsection (6)—
(a)
terminates his appointment, and
(b)
except in the cases given in subsection (7), revokes the power.
(6)
The events are—
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(a)
the disclaimer of the appointment by the donee in accordance with
such requirements as may be prescribed for the purposes of this section
in regulations made by the Lord Chancellor;
(b)
subject to subsections (8) and (9), the death or bankruptcy of the donee
or, if the donee is a trust corporation, its winding-up or dissolution;
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(c)
subject to subsection (11), the dissolution or annulment of a marriage,
or civil partnership, between the donor and the donee;
(d)
the lack of capacity of the donee.