Joint Committee on the Draft Mental Incapacity Bill First Report


The draft Mental Incapacity Bill is the product of extensive consultation stretching back to 1989. We have been expected to scrutinise and report on it in little more than two months working time: an over-optimistic timescale which calls into question the process for setting deadlines for pre-legislative scrutiny. However we have considered over 1200 written submissions, heard evidence from 61 witnesses and have produced as thorough an analysis as possible in the time available.

On the whole, we endorse the principles and general direction of the draft Bill. The majority of evidence we received was broadly supportive of the Bill. We believe that there is a clear need for the bill and our report, whilst critical, should be read accordingly.

The difficulty of trying to create satisfactory legislation in this complex and sensitive area should not be underestimated. The draft Bill has provoked strong feelings, both positive and negative. We sympathise with some of the anxieties expressed, though we believe that many of them are misplaced.

Nevertheless, considering the long gestation period it has had, the draft Bill still has shortcomings. We believe those shortcomings can and should be rectified. Although a great deal of work remains to be done to get the Bill right, and strong feelings about it will undoubtedly remain, we hope it will soon be brought before Parliament. Those it is intended to help have waited long enough for the benefits it should bring them.

We endorse the draft Bill's widely-supported aim of replacing common law uncertainties by a comprehensive statutory framework to define mental capacity, help those lacking it to make their own decisions where they can and enable sound decisions to be made for them when they can not.

We believe that the Bill should follow the model of the comparable Scottish law by setting out the guiding principles at the start. While this may not be necessary for lawyers, it will undoubtedly be helpful for the many lay people likely to be affected by it and will set clear guidelines around which good practice can be developed.

The draft Bill rests on a combination of the well-established common law principle of best interests and the presumption of capacity. We think this approach is sound. The Bill should be seen as enabling rather than restrictive, although it has to strike a delicate balance between respect for individual autonomy and the need to protect the vulnerable.

We acknowledge the difficulties inherent in trying to create a satisfactory legislative framework for mental capacity of varying degrees, from temporary to permanent and including fluctuating capacity, and for decisions ranging from the everyday to the life changing.

The draft Bill's yardstick of functional capacity - assessing capacity in relation to the required decision at the time when it is needed - seems right. The concept of best interests is the draft Bill's other cornerstone. This is well-enough understood by lawyers, but perhaps open to misinterpretation by others. Decision-makers must be clear about what is expected.

The draft Bill introduces the new concept of General Authority. This is intended to replace the common law defence of necessity with positive permission-giving arrangements for taking everyday and emergency decisions. The concept has been widely misunderstood and the term "authority" itself seems to have negative connotations for some who fear it amounts to licensed paternalism. Consideration should be given to a more appropriate term.

Proposals in the draft Bill would extend the present Enduring Powers of Attorney to a new Lasting Power of Attorney, which will include decisions on welfare and healthcare as well as financial management. We received disturbing evidence indicating serious abuse of financial powers under the present Enduring Powers of Attorney which the Bill must strive to curb. Stricter safeguards will be needed and those who act under these powers will need clear guidance on what is involved and be required to keep adequate records of financial transactions.

We welcome the draft Bill's proposal to introduce a new Court of Protection: a more accessible single jurisdiction with powers and authority akin to those of the High Court. But we are concerned over the apparent limitations on availability of legal aid. Deputies appointed by the Court to take decisions on behalf of those lacking capacity will need clear standards of conduct and limitations on their autonomy. They should not take decisions on life-sustaining treatment.

One of the most controversial aspects of the draft Bill would enable those with capacity to make advance decisions to refuse medical treatment should they become incapable. This provoked strong moral objections and wide-spread concern that it could lead to euthanasia by the back door. Although we are satisfied that nothing in the draft Bill would permit euthanasia, it may be advantageous for the Bill to incorporate additional assurances on this point.

In our view, it is right that those who have capacity should be able to state in advance what medical treatment they would not want to have in case they become incapable of taking decisions. The consequences of those decisions need to be properly explained to them. The decisions themselves should be made in writing and independently witnessed in almost all cases, and regularly reviewed. Doctors must satisfy themselves that advance decisions are valid in relation to the treatment concerned. Guidance is needed on standards of care and the particular problems posed by artificial nutrition and hydration.

Any new mental health legislation should take careful account of the criteria for judging capacity established by this Bill. Some grey areas between the draft Bill and the present Mental Health Act (notably the so-called "Bournewood Gap")[1] need to be addressed.

The Codes of Practice will be absolutely critical for the success of the Bill. It must be clear, comprehensive and workable. It must also be accompanied by a publicity campaign to explain what the Bill is all about, and by readily-understandable guidelines for informal carers, families and others helping those lacking capacity to make decisions, as well as those with learning difficulties.

A great deal remains to be done on the Codes of Practice. Parliament must see the Code in draft when the Bill is introduced, but the work still needed on this should not hold up the introduction of the Bill.

We also looked at what the draft Bill does not cover. It needs to say much more than it does about protection against abuse and exploitation of those lacking capacity. The new Office of the Public Guardian and other statutory bodies should have powers to investigate and intervene to protect vulnerable people from abuse.

Some of our respondents were strongly opposed to allowing medical research on those lacking the capacity to give consent. After careful consideration, we concluded that the Bill should allow it in limited circumstances under strict controls administered through medical ethics committees.

We believe the Bill should acknowledge the valuable role that independent advocacy services can play in helping those lacking capacity to assert their rights, provide additional safeguards against abuse and exploitation and help to resolve disputes. The status of independent advocates needs to be officially recognised and their availability and standards should be improved.

It is most regrettable that the Department was only able to provide inadequate estimates of the likely resource impact of the Bill very late in our Inquiry. Both Houses will need to take a very thorough look at the resource implications when the Bill is presented to them.

The draft Bill should also cover access to information for those lacking capacity and their helpers. The rights to privacy of those lacking capacity should be respected and protected. Yet those acting for them do need access to information if they are to carry out their responsibilities properly and provide effective assistance.

We are also surprised that jurisdictional issues arising from the differences between the draft Bill and the counterpart Scottish legislation have not been addressed. We welcome the Department's assurance that they will be when the Bill itself is presented to Parliament.

Altogether we have made nearly 100 recommendations about the draft Bill.[2] We expect the Government to give them the utmost consideration as a matter of priority.

One of those recommendations is that the Bill's title should be changed to the Mental Capacity Bill. We think this reflects more accurately what the Bill is about and removes some of the more pejorative undertones regrettably associated with incapacity. We hope that change will symbolise the changes in public attitudes and understanding which are long overdue and which this Bill should help to bring about.

1   See Chapter 12, page 60 Back

2   See Chapter 2, page 11 Back

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Prepared 28 November 2003