Joint Committee on the Draft Mental Incapacity Bill Written Evidence

98.Memorandum from Advocacy Partners (MIB 821)

  1.  Advocacy Partners provides independent advocacy to people with disabilities, mainly in South West London and in Surrey. Established in 1981 the organisation largely works with people with profound learning disabilities and also works increasingly with older people with disabilities, including those affected by dementia. Advocacy Partners is a registered charity and a company limited by guarantee.

  2.  We broadly welcome the proposals in the draft Mental Incapacity Bill ("the draft Bill") and believe that it helps to fill a significant gap in legislation that at present negatively affects many of our clients as well as carers and professionals who support them. However we believe that substantial amendment is needed if the draft Bill is to enhance rather than to reduce the autonomy of people whose capacity to make particular decisions may at times be questioned.

  3.  We have, where possible, answered the specific questions posed for the Scrutiny Committee and provided more detailed comments on a number of areas of the draft Bill.

  4.  Was the consultation process preceding the publication of the draft Bill adequate and effective?

  The issues addressed by the draft Bill have been published and consulted on since the late 1980's, we believe that the process has been adequate and effective.

  5.  Are the objectives of the draft Bill clear and appropriate?

  It is clear that the objective of the draft Bill is to provide a legislative framework where none previously existed for people who lack capacity. It would be more appropriate, and render a greater service to many people whose capacity may at times be questioned, if legislation set as a second objective providing a framework and support to enhance capacity.

  6.  Are the proposals in the draft Bill workable and sufficient?

  Greater safeguards are needed specifically in relation to the general authority, clarity is needed about how capacity will be assessed and by whom. An entitlement to independent advocacy is required to enhance the capacity of people to make decisions and to protect the autonomy and rights of people who may nevertheless lack capacity to do so. For these reasons we do not consider that the proposals are workable or sufficient.

  7.  Are there relevant issues not covered by the draft Bill which it should have addressed?

  Yes, entitlement to advocacy and to support to assist communication and enhance capacity.

  8.  In what other ways might the draft Bill be improved?

  Please see detailed comments below.

  9.  Approach to incapacity

  9.1  We welcome the definition of incapacity relating to the ability to make a particular decision.

  9.2  We believe that an adequately resourced information, awareness raising and training strategy, as well as the code of conduct and guidance, will be required to reinforce this understanding of incapacity. As practitioners well used to the vagaries of interpretation of legislation and policy, we are concerned that without this the enactment of legislation will lead perversely to significant number of people being considered by professionals and others to be "incapable" without sufficient regard to a specific decision or time.

  10.  Inability to make decisions

  10.1  We welcome the requirement that all practicable steps must be taken to help a person to make a decision and that these must have failed before the person is treated as unable to make that decision.

  10.2  We believe that this requirement needs to be accompanied by explicit reference within the proposed legislation to:

    —  A requirement that reasonable steps are taken to provide information at a time and in a way that is most helpful to the individual in supporting their ability to make a decision.

    —  A requirement in relation to major decisions[40]that appropriate professional advice on methods of communication to enhance capacity is wherever practicable sought and acted upon.

    —  A duty on relevant statutory authorities to provide such advice and support in line with this advice where required.

    —  A right to provision of independent advocacy to enhance the person's capacity, at least where triggered by specific major decisions and events (some of which are described in this paper).

  11.  Best interest framework

  11.1  We welcome the best interest framework. We have used the (similar) framework outlined in the consultation paper Who Decides over a number of years, including in our policies on confidentiality and referrals, in appraising options on behalf of clients and in providing supervision to advocates working with people who lack capacity in relation to particular decisions. We have found these to be appropriate and workable.

  11.2  We are concerned that the test for compliance 4(4) needs to be set higher in many cases. It ought to be explicit that donees of a L.P.A., deputies and employees of health and social care agencies making major decisions under the general authority must have due regard to the factors outlined in 4 (2) wherever it would be reasonable for them to do so and 2(3) in any case.

  12.  The general authority


  12.1  Explanatory notes suggest the application of this clause to "day-to-day decisions". We note that this is not made explicit in the draft Bill.


  12.2  We broadly agree that such an authority is helpful in providing protection to carers and professionals in supporting people who are unable to make some day-to-day decisions.

  12.3  The draft Bill does not provide a formal process of assessing capacity prior to the general authority being used. We appreciate that there may be a tension between ensuring that people are supported to make their own decisions whenever practicable and the need to reduce potential intrusion and unhelpful formality, particularly where this may jeopardise care provided by relatives and other unpaid carers. Nevertheless we are concerned that in the absence of assessment of capacity, legislation based upon the draft Bill runs the risk of legitimising paid staff and carers making decisions on the part of a person who can be supported to do so himself.

  12.4  We believe that further consideration is needed about how to achieve the right balance here and that community care assessment and care planning may provide tools to achieve this in some cases.

  12.5  There is also an opportunity to ensure that proposed legislation encourages the provision of guidance, resources and training on supporting people's autonomy in these day-to-day decisions. Such materials need to be relevant to service users, professionals, carers and those who support them.


  12.6  In the draft Bill the general authority appears to apply in deciding major questions on behalf of a person believed to lack capacity, such as where to live, significant medical treatment, contact and use of restraint.

  12.7  We work with a large number of men and women who face very major decisions, for example about where they will live in the future. Many of these people lack capacity to make these decisions. In our view, the draft Bill does not provide sufficient safeguards for the use of the general authority in this situation.

  12.8  We suspect that there are likely to be a number of different proposals as to how safeguards can be strengthened here. We suggest that in relation to major decisions:

    (i)  It should be specified that the general authority should be exercised in relation to significant medical treatment by the relevant health professional, and

    (ii)  In the case of people provided with health and social care services, a formal assessment of capacity must take place, and a recorded best interest decision must be made prior to major decisions being enacted using the general authority, except in the case of emergency treatment/action.

    (iii)  A duty is placed on PCTs and local authorities that if they are aware of a person who faces a major decision that s/he lacks capacity to decide, they will ensure that independent advocacy is made available to the person.


  12.9  In relation to s. 7, we are concerned that even with the above amendments, there may not be sufficient safeguards to the use of restrictive physical interventions for non-emergency situations. We believe that the proposed legislation presents an opportunity to provide greater clarity and greater protection here. This should include a right to advocacy. Consideration should also be given to introducing a requirement that a Court order is sought in some circumstances, and a formal procedure followed in all cases of non-emergency restrictive physical interventions known to statutory authorities.

  13.  Lasting Powers of Attorney (LPA)

  13.1  From our work, especially with older people with disabilities, we believe that the creation of LPAs has the potential to be of considerable benefit to people who may experience declining capacity or wish to have safeguards in place in case this occurs.

  13.2  We have experience of abuse of the EPA system and are concerned that the position of donors of LPA is strengthened by clear information to potential donors and the availability of guidance, advice and where necessary advocacy.

  13.3  In our experience statutory authorities and service providers are sometimes hesitant to intervene where they suspect that EPAs (and appointeeship) may be being misused. As a consequence we believe that it is important that, prior to enactment of legislation, effective information is provided to statutory authorities, service providers, advice and advocacy agencies on the use of LPAs and about mechanisms to challenge suspected inappropriate use of these.

  14.  Deputies

  14.1  It appears from 19(1) that the draft Bill appears to wish to keep to the minimum any restrictions on who may become a deputy. We believe that some factors to be taken account of in the selection of a deputy ought to be provided and that issues of potential conflict of interest for deputies must be addressed.

  14.2  In order to provide sufficient safeguards, we believe that the Court should have the power to require a local authority or PCT to arrange for the appointment of an independent advocate where the nature of the decision is such that further checks and balances are needed. This may be especially relevant if there are potential conflicts of interest for the deputy and where the powers of the deputy are likely to span a number of issues or may be required for a protracted period of time.

  14.3  We agree that in general the powers of the deputy should be as limited in scope and duration as possible. We think that to provide the most assistance to, for example, people with profound learning disabilities, the appointment of a deputy over a considerable period of time may nevertheless, in some circumstances, ensure fuller account is taken of the person's preferences and interests than would be the case with several appointments or repeated reference to the Court.

  15.  Assessing capacity

  15.1  We appreciate the draft Bill provides for a Court to determine whether an individual has capacity to make a decision. We believe that the draft Bill also needs to address how capacity will be assessed, by whom and whether this can be challenged other than by application to the Court.

  15.2  Consideration needs to be given as to any conflict of interest that may arise for professionals and organisations making such assessments. A right to independent advocacy to provide support and safeguards in the assessment process must be included for the person being assessed.

August 2003

40   "Major decisions" will be used in this paper to include decisions about where to live, significant medical treatment, contact and use of restraint.

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