Joint Committee on the Draft Mental Incapacity Bill Written Evidence

87.Memorandum from Mencap (MIB 792)


  Mencap welcomes the publication of the draft Mental Incapacity Bill and is pleased to be able to respond to this consultation process. Mencap has been campaigning on the need for legislation in this area for more than a decade and hopes that the draft Bill becomes legislation during the next parliamentary session. We consulted widely with Mencap members and local staff with interest in this area to reach our recommendations. We will also be a holding a national consultation day for people with a learning disability in early September. An analysis of this response will be shared with the Scrutiny Committee.

  Mencap welcomes the key principles in the Bill, which we believe, will empower and support people with a learning disability to make their own decisions in day to day matters. The Bill will also clarify who has the legal right to take day to day welfare, healthcare or financial decisions on behalf of people who lack the capacity to make decisions independently.

  However, Mencap does not feel that the Bill currently contains sufficient mechanisms to ensure that these principles are implemented in practice. Mencap would like to see mechanisms in the Bill to allow people to challenge decisions made on their behalf. This is why we are continuing to press for the inclusion of advocacy on the face of the Bill and for additional safeguards in relation to the General Authority.

  Key principles in the draft Bill that Mencap welcomes include:

    —  Enabling people to make as many of their own choices as possible for as long as possible and to be supported to make their own decisions;

    —  Protecting people who cannot make their own decisions;

    —  Enabling supporters of people who cannot make decisions to take part in decision-making;

    —  Providing guidelines for professionals working with people who do not have sufficient capacity to make their own decisions.


  However, we have a number of concerns about the draft Bill. These are the following:


  There is a serious gap in the Bill. It does not state that advocacy is needed to support people to make as many of their decisions as possible. We are concerned that this gap may seriously affect some people with a learning disability.

  Mencap believes that independent advocacy should have a key role in ensuring that:

    —  People are not wrongly assessed as incapable of making a particular decision;

    —  Once accurately assessed, people with impaired capacity are able to participate fully in decisions taken on their behalf, and are supported to develop their capacity to participate over time.

  Although the Disabled Person's Act 1986 gives disabled people a qualified right to access independent advocacy, it has never been implemented. Valuing People, the learning disability White Paper, provides some funding to develop independent advocacy. This funding has been sufficient only to expand the geographical reach of advocacy organisations, not to ensure that all people with a learning disability can access an advocate. Evidence suggests that funding has been cut for some advocacy services.


  Mencap acknowledges the need to empower supporters to take effective decisions on behalf of people with impaired capacity and to feel that they are protected by law. The GA serves this purpose well, and the restrictions set out in clause 7 should prevent the worst abuses of its power (the supporter cannot use or threaten to use force). However, we are concerned that there is no mechanism in the Bill whereby people with a learning disability can challenge decisions taken under the GA.

  We are also concerned about the universal scope of the GA. Our understanding prior to the publication of the Bill, was that the GA would apply to informal day to day decisions made by unpaid supporters. However, the Bill makes it clear that professionals will also be able to operate under its authority, and the Bill makes no distinction between a decision made by a health professional based on best interests and a supporter making a decision in a person's best interests. Professionals should be bound by a professional code of conduct and they need to be subject to tighter restrictions.

  In the draft Bill, there is also no limitation placed on the types of decision that can be taken under the GA, other than that in all the circumstances it is reasonable. It may therefore be that in certain situations, for instance following a car accident or if a person is about to be discharged from hospital, consent may be given for significant health or welfare decisions under the GA. However, important decisions such as where the person should live should not fall under the GA. Again, access to independent advocacy may provide an important independent check on the reasonableness or otherwise of a decision.


  Mencap supports the widening of the scope of attorneyship from purely financial affairs to additionally cover the full range of health and welfare decisions. This would enable supporters who are looking after severely disabled people to apply to become an appointed person that will look after that person's financial, welfare and medical interests.

  However, we feel that tighter controls should be placed on those who can be appointed as donees of LPAs. At present, an individual who is bankrupt may not be appointed. We believe that this exclusion should be extended to those convicted of fraud or abuse of a previous LPA. The Guardianship Office, which is responsible for these applications, should also be linked with the Criminal Records Bureau to ensure that the person is not on the Vulnerable Adults List.

  As with supporters operating under the GA, we are concerned that donees holding wide-ranging powers under an LPA should be fully informed of their rights and responsibilities. It will also be important that the Public Guardianship Office effectively monitors the operation of LPAs.


  Court Appointed Deputies will replace the current receivership system. As with LPAs, Deputies will be able to take decisions, only if so appointed, across the full range of financial, health and welfare issues. Deputies can be appointed to make decisions on one or more strand of decision-making. We are concerned that the Court of Protection should only appoint a Deputy when an independent assessment of capacity to take a particular decision has been made. Also, the appointment of a Deputy is a key stage when we believe a right to access independent advocacy should be triggered. Unlike our position on LPAs, we do not believe that Deputies should always be able to give consent to the withdrawal of treatment. Rather, we prefer a requirement for a single order of the Court of Protection where circumstances permit.


Court of Protection

  Mencap supports the principle of a unified Court of Protection with High Court status, and the provisions for it to have a regional presence. Court of Protection judges and staff will need to have detailed training to fully understand the impact of this new legislation. Other training includes disability awareness training and training on the range of illnesses that may cause a person to lack capacity. The provision for the Court to make single orders on important decisions is particularly welcome.

The Public Guardian

  Mencap believes that the Public Guardian will have a vital role to play in the successful implementation of this Bill. The Public Guardianship Office must be sufficiently resourced to effectively monitor any abuse of the powers set out in the Bill. Aside from two specified criminal offences (clause 31—ill-treatment and neglect; clause 32—concealing or destroying an advance decision), the Bill does not clarify what, if any, sanctions will be available to the Public Guardian if an individual is found to be acting outside the spirit of the Bill.

Title of the Bill

  Mencap is concerned about the title of this Bill which, we believe, has negative connotations. The Bill is more positive than its title. It is about capacity and the support available when person may not be able to make his/her decision. Its assumption is that you have capacity to make that certain decision unless others prove the contrary. Therefore, it should be mental capacity rather than mental incapacity. All the countries that have introduced similar legislation do not use that terminology. In Scotland, it is called, Adults with Incapacity Act 2000, in Southern Australia, the Guardianship and Administration Act 1993, and in Canada, the Substitute Decision Act and Advocacy Act of 1992.


    —  Adults at risk—the Bill does not cross-refer to regulations and guidance around vulnerable adults, for instance No Secrets. While this relationship may be best considered in guidance, it is important that the Bill does not create parallel structures and mechanisms to those already in place. Mencap also support specific recommendations in Who Decides for Public Law Protection for People At Risk including a duty on social services to investigate possible cases of neglect or abuse.

    —  Appointeeship—this is where a person can be given responsibility by the Department of Work and Pensions for handling someone's welfare benefits (local authorities can do the same with housing benefit) because the person is not thought to be capable of doing it themselves. Mencap believes that appointeeships should be brought within the scope of the Bill, not least because the person in question is likely to be even more vulnerable by virtue of being dependent upon benefits. Appointees should be bound by the same best interest principles as those operating as Deputies or donees of LPAs.


  Mencap believes that the successful implementation of this Bill will depend largely on the resources attached to it. Aside from the need for independent advocacy outlined above, the Bill will create a substantial training need across a range of professional groups such as doctors, nurses and social care professionals. Funding is needed to ensure that its powers are used as intended. Funding is also needed to educate the public about the new rights and procedures to ensure that they have access to the right information.

  The Government has positioned the Bill as part of a progressive agenda, enhancing the civil and human rights enjoyed by people who may have difficulty making or communicating decisions. To make this vision a reality, Mencap believes that the Government must attach sufficient resources to this legislation to ensure that those who come under its powers have access to independent advocacy.

August 2003

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 November 2003