Joint Committee on the Draft Mental Incapacity Bill First Report

4 Chapter 4: Principles of the Bill

31. The Commentary and Explanatory Notes issued by the Department for Constitutional Affairs to accompany the draft Bill[21] described the Key Principles of the Bill as a combination of: "… a single definition of capacity that requires capacity to be assessed according to each decision that needs to be taken" and enshrining in statute the concept of "acting in the best interests of a person who lacks capacity…as the overriding principle that must guide all decisions made on behalf of someone lacking capacity"

32. This document also says that individuals will not be labelled "incapable" but only "regarded as lacking capacity for certain decisions at the time that that decision (sic) needed to be taken". It points out that "in many cases individuals are quite capable of making some decisions", although they may find others more difficult and goes on to say: "The approach to establishing whether someone has capacity used in the Bill is underpinned by the belief that whenever possible individuals should continue to make as many of their own decisions as possible. The starting point is always that the person has capacity and the Bill states that 'all practicable steps' must be taken to help the person make the decision before they can be regarded as lacking the capacity to make that decision".[22]

33. It is also pointed out in the Commentary and Explanatory Notes that the Bill includes a checklist of factors that decision makers must take into account when considering what is in the best interests of the person concerned so as to "provide a common standard around which all interested parties should discuss and agree how to make a decision for the person who lacks capacity."[23]

34. In correspondence with the Chairman of the Joint Committee, Parliamentary Under-Secretary of State for the Department for Constitutional Affairs, Lord Filkin, has set out what the Department regards as the objectives of the Bill as being to: "maximise the capacity of those who lack or who may lack capacity to take certain decisions for themselves; protect vulnerable adults with mental incapacity issues from abuse and neglect; and, provide clarity to families, informal carers and professionals as to when they may act or take decisions on behalf of those incapable of making such decisions themselves."

35. In oral evidence to the Committee on 22 October, Lord Filkin described the Principles of the draft Legislation as follows:

    "The best interest is one of the principles - probably it is a fundamental principle. It is really saying that where people are making decisions in a situation where there is not capacity and they are not at liberty to act at large; they can only act in terms of the best interest. Secondly, there are a number of other principles in our Bill: the presumption of capacity, the functional test of capacity…in other words, making a judgment about capacity at the specific point in time when you need to rather than speaking once and for all. There is a requirement to take all practical steps to help people make decisions, in other words, not just making it a black and white issue. Also, when it is clear that a person does not have capacity, still striving to take their wishes into account." [24]

36. These principles are incorporated in Part 1 of the Bill which defines lack of capacity (Clause 1), inability to make decisions (Clause 2), the presumption against lack of capacity (Clause 3) and best interests (Clause 4). The latter includes the checklist of factors to be considered by anyone taking decisions in the best interests of someone lacking capacity.

37. Unlike its Scottish counterpart, the Adults with Incapacity (Scotland) Act 2000[25], however, the draft Bill does not have a specific statement of the fundamental principles on which it is based. Section One of the Scottish Act sets out five general principles which govern all "interventions" taken in the affairs of an adult under, or in pursuance of, the Act. These are:

  • There shall be no intervention … unless that intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention.
  • the intervention must be the least restrictive option in relation to the adult's freedom.
  • In deciding on any intervention, account must be taken of the adult's past and present wishes and feelings so far as they can be ascertained by any means of communication, whether human or by mechanical aid.
  • Account must be taken of the views of relevant others (including the nearest relative and primary carer) where it is reasonable and practicable to do so.
  • People holding certain powers under the Act (e.g., attorneys and guardians) must encourage the adult to use existing skills, and to develop new skills, concerning his/her property, financial affairs or personal welfare.

38. Section One of the Scottish Act also contains the "fundamental definitions" which apply in relation to the Act, including the definitions of "adult" and "incapable", thus defining the people to whom the Act applies. The presumption of capacity is established under Common Law and is not re-stated in the Act. Thus the Scottish Act is designed to run in conjunction with the Common Law, whereas the draft Bill is designed to codify existing Common Law practice in statute.

39. We examine these differences of approach in more detail in the relevant sections of the Report. However, we were struck by the absence of a specific statement of principles on the face of the Bill as an initial point of reference, as has been done in the Scottish Act. Although the principles of the draft Bill may be discernible to lawyers from the opening clauses of the draft Bill, they may not be so obvious to the majority of non-legal persons who will have to deal with the Bill in practice.

40. Several witnesses told us they would see advantage in having such a statement of principles on the face of the Bill.[26] In particular, our attention was drawn to the principles set out in section 1 of the Children Act 1989 and, as an example of more recent legislation, to the Adoption and Children Act 2002, which set out in section 1 specific 'Considerations applying to the exercise of powers' under that Act.[27]

41. When we asked Lord Filkin about this in oral evidence he said

    "We are certainly open to reflection as to whether it would give people more comfort to put some of those principles altogether in one section. We are not saying that we will do that, but we need to think about why we should not have a section making it very clear rather than requiring the effort of going through the whole Bill to find the principles at various points in it".[28]

42. In an enclosure to a subsequent letter to the Chairman, Lord Filkin added:

    "We agree that the perception of the Mental Incapacity Bill is important and we have heard that the Scottish style of a clear statement of principles in the Bill has been well received. Therefore, we are content to investigate whether it would be possible to amend the draft Mental Incapacity Bill to similar effect and give more emphasis to the principles given above. Of course, we will need to take advice from Parliamentary Counsel as to the possibility of achieving this."[29]

43. We welcome the Department's commitment to give further consideration to the possibility of incorporating a statement of principles on the face of the Bill. We believe that such a statement inserted as an initial point of reference could give valuable guidance to the Courts, as well as helping non-lawyers to weigh up difficult decisions. Evidence given to us indicates this would be welcome to a wide range of those who have to deal with the problems of substitute decision-making in practice. We also believe that such a statement would be valuable in helping to frame the Codes of Practice based on the Bill.

44. We further recommend that the statement of principles should include the following:

  • Every adult has the right to make his/her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
  • Everyone should be encouraged and enabled to make his/her own decisions, or to participate as fully as possible in decision-making, by being given the help and support s/he needs to make and express a choice
  • Individuals must retain the right to make what might be seen as eccentric or unwise decisions
  • Decisions made on behalf of people without capacity should be made in their best interests, giving priority to achieving what they themselves would have wanted
  • Decisions made on behalf of someone else should be those which are least restrictive of their basic rights and freedoms".

21   CM 5859-II, page 7 Back

22   Ibid Back

23   Ibid Back

24   Q723 (Lord Filkin) Back

25   2000 asp 4 Back

26   Q164 (Mr Kramer), Q177(Mr Broach), Ev 85 MIB 1188, Q273 (Dr Wilks), Q284 (Professor Murphy), Q446 (Mr Dixon), Q548, Q555, Q556 (Mr Clements) Back

27   Baroness Barker, Private session 23October 2003 Back

28   Q723 (Lord Filkin) Back

29   Ev 284 MIB 1221 Annex 3 Back

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