Joint Committee on the Draft Mental Incapacity Bill Written Evidence

103.Memorandum from Age Concern (MIB 729)


    —  As a member of the Making Decisions Alliance (MDA), Age Concern England fully endorses MDA's submission. This separate submission underlines those concerns and raises some additional points.

    —  The publication of the Bill is welcomed, although there are aspects on which clarification and further consideration would be beneficial.

    —  The Bill should begin with the presumption against lack of capacity.

    —  Supported decision-making should be incorporated onto the face of the Bill; and advocacy also included.

    —  The principle of the person's best interests should also pay attention to their past and present behaviours.

    —  A vital step—deciding that someone lacks capacity and communicating that decision—is missing from the Bill.

    —  The parameters of Lasting Power of Attorney (LPA) need clarifying, including how these are used at times when the donor has regained capacity; the minimum qualifying characteristics for LPAs and Deputies should be extended to include criminal convictions and care offences.

    —  Clear examples of what constitutes "day-to-day care" will be needed to ensure the general authority is not used to make substantial decisions.

    —  Further checks are suggested in respect of expenditure made by those exercising the general authority.

    —  Legislation covering capacity and incapacity should include appointeeship.

    —  Clarification is needed on the general relationship between the proposed Bill and the Data Protection Act 1998, and the relationship between the draft Bill and the No Secrets guidance.

    —  Guidance will be needed for LPAs and Court-appointed deputies, where more than one party is acting for an individual.

    —  Consideration should be given to mechanisms for "lodging" advance decisions and advance statements with health or social care bodies.


  1.1  Age Concern England believes that the consultation process preceding the draft Bill was adequate and effective. We are especially mindful of the number of years over which discussion has taken place since the publication by Age Concern of its book, The Law and Vulnerable Elderly People in 1986; the subsequent Law Commission inquiry, which reported in 1995; the response from government since 1997; and the number of helpful stakeholder meetings held with officials and the then Minister, Rosie Winterton MP. One important outcome of this approach is that opportunities to understand the complexities and subtleties of the issues have resulted in a draft Bill whose principles are warmly welcomed by Age Concern England.


  2.1  The Bill is based on three key principles: that everyone should first be presumed to have capacity to make their own decisions; that a functional test of capacity should be applied for all decisions at the point when they need to be made; and that, where someone else makes a decision on behalf of another (because capacity has been assessed as lacking in respect of that particular decision), they must act in the best interests of the other person.

  2.2  These are vital safeguards for older people and others. The pulling together of a variety of legal frameworks within which individuals are able to make their own decisions and have others act on their behalf, the extension of decision-making beyond matters of property and financial affairs, and the creation of a new Court of Protection with enhanced duties and responsibilities, are also appropriate.


  3.1  Age Concern England believes there are some changes from which the draft Bill would benefit. We believe that the Bill itself should begin with the presumption against lack of capacity. This could be easily achieved by renumbering existing Clause 3 as Clause 1. We feel that this would send an important message to everyone affected by the proposed changes, that the starting point is always that the person has capacity.

  3.2  Clause 2 (3) is one of the most important objectives of the Bill, we believe, although we would ask that it be amended to read "all practicable steps to support him to do so". This would create the notion of supported decision-making on the face of the Bill, an essential element in our view if professional and lay audiences are fully to comprehend how individuals whose capacity may fluctuate, or who may be able to take some decisions but not others, are able to arrive at their particular decisions.

  3.3  Clause 2 (3) also allows for the possibility of advocacy support, but it is a great disappointment that this is not specifically mentioned in the Bill. Reliance on the Mental Health Bill in this respect would, we believe, be inappropriate since access to independent advocacy is only proposed for those who have been compulsorily detained. As such it would not, for example, be relevant to the hundreds of thousands of older adults who ordinarily live in care homes. Access to independent advocacy will also prove particularly important in respect of the use of the general authority (Clause 6) to ensure that the checks and balances envisaged by the proposed strengthened Court of Protection are in place at all levels and at all stages of the decision-making process. As legislation entitling people with disabilities to advocacy already exists on the statute books (Disabled Persons (Services, Consultation and Representation) Act 1986), this draft Bill provides an ideal way for it to be enacted.

  3.4  We believe that the principle of the person's best interests (Clause 4) would be further enhanced by the addition to "as to his past and present wishes and feelings" (Clause 4(2)(c)(i)) of the phrase "and behaviours". We feel this would be of great help in matters of culture, sexuality and religion (and other beliefs); and also recognise that much decision-making is naturally of a progressive or cumulative nature in which behaviour as well as feelings is an important aspect.

  3.5  The principle and the process whereby someone has decided another person lacks capacity in respect of any decision would benefit from some further reflection. At present, it appears there is a gap in the draft Bill between how to decide that someone lacks capacity, and the need to then act in their best interests—this missing element concerns how the decision is made and communicated.

  3.6  One aspect to the draft Bill that is unclear concerns its remit in terms of the aspects of life about which decisions can be made in the various frameworks described. Clauses 17 and 18 set out the powers relating to personal welfare, and to property and financial affairs but appear as "stand-alone" powers except in relation to the restrictions on these areas established in Clause 20 for Court-appointed deputies. Clauses 23-25 set out the parameters relating to the following of a person's advance decisions(s); and Clause 26 sets out specific exclusions relating to decisions about family and other relationships. Clearer links need to be made between Clauses 17 and 18 and the role of Lasting Powers of Attorney (LPAs); and between those clauses creating the powers of LPAs, Court-appointed deputies and the general authority, and Clauses 17 and 18.

  3.7  We would also appreciate clarification as to whether proposals under the personal welfare LPA will mean that donors retain, at times when they have capacity, decision-making over only health matters, or whether this will also include broader personal welfare matters.

  3.8  In respect of the general authority, there will need to be very clear examples of what does, and does not, constitute an everyday form of care or a decision about day-to-day care. There are particular concerns that without clear guidance, substantial decisions (such as moving permanently to live in a care home) may be taken under the general authority. Information will be needed (especially by carers) in order to make clear the parameters to, and responsibilities of, acting under the general authority. In addition, if expenditure is regularly incurred for the same form of care, we also feel that those exercising the general authority should be obliged to bring this to the attention of the proposed Court of Protection.


  4.1  One of the most important aspects of the draft Bill lies in the proposal to establish a Lasting Power of Attorney (LPA), to replace existing Enduring Power of Attorney (EPA) arrangements. This is particularly welcome as it overcomes current difficulties whereby whilst an EPA may make financial decisions they are unable to take welfare decisions on behalf of the other party: in reality, for many older people, decisions about health and welfare (such as moving to live in a care home) are inextricably linked with decisions about spending money (such as paying care home fees).

  4.2  However, there are other common arrangements that involve the handling of individual older people's state benefits, through the offices of the Department for Work and Pensions (DWP), particularly that of appointees. Detailed comments on this point are included in the submission from MDA. There are particular concerns for older people that, for those whose only income is via benefits (ie those pensioners who do not have an occupational pension) appointees have control over the whole income if the person has been assessed, on the current "one-off" occasion by DWP staff, as being mentally incapable of managing their financial affairs. This system does not accord with the principles of the draft Bill. Nor does it give older people protection as there are few checks made by the DWP on appointees.

  4.3  Age Concern believes that any legislation covering capacity and incapacity should extend to appointeeship. At the very least, appointees should be required to act within the principles of the draft Bill with regards to decisions about capacity and acting in the person's best interests, and these changes reflected within social security legislation. It would also need to be made clear how the appointee role would stand in relation to the general authority. In our view, appointeeship would best be absorbed by Court-appointed deputies using a similar process to the current "short order" which is used when a person's finances are such that full receivership is not required.

  4.4  Given that, on the financial side, the proposed LPA arrangements mean that the donee could act on the donor's behalf even if they have capacity, further consideration needs to be given to how banks and other financial institutions would be certain whether a donee was acting when someone lacked capacity or not. This is important as it reflects the practical application of one of the LPA's most attractive attributes, namely that it is not assumed that once an LPA has been registered that the person would permanently lack all decision-making capacity from that point onwards (with current EPA arrangements, registration has tended always to mark the point beyond which permanent and total incapacity is assumed). This matter will require some further thought to preserve, in practice, this important principle, whilst at the same time ensuring that banking practice is able to go some way to protecting individuals against financial abuse.

  4.5  For holders of both LPAs, and Court-appointed deputies, we believe that the same minimum qualifying characteristics should apply, but that these should be extended beyond bankruptcy, to include criminal convictions and care offences.

  4.6  Any Codes of Practice and guidance should both be followed as a requirement. Much of the detail of the proposals—for example, checklists for "best interests", and definitions of terms such as "substantial risk of significant harm"—are to be contained in such Codes and associated guidance. We believe that Section 30 (7) (b) be amended so that these Codes must be taken into account by the court.

  4.7  The relationship between those exercising the general authority and their access to an individual's money would benefit from further strengthening of checks and balances. We suggest that Section 31 contains an additional sub-clause of undue influence in relation to the general authority and the handing over of monies for purchases made. We also suggest a financial limit be set under the general authority (whether for single or cumulative reimbursements), above which anyone using that authority in that way would be required to notify the Court of Protection.

  4.8  We note that, in the regulatory impact document, mention is made of an increase in legal help. We believe that legal aid should be made available where the disputes that are going to the Court are significant to that individual, such as a dispute about whether the person lacks capacity to make an important life-changing decision. Some parameters could be drawn up for these situations. For others seeking the Court's decision legal aid should also be available, on the usual means-tested basis.


  5.1  One of the changes in Scotland, brought about through the Adults with Incapacity (Scotland) Act 2000, concerns authorisation for carers and other individuals (but not social work staff) to obtain authority to access the funds of an adult in order to meet living expenses. Authority is granted by the Public Guardian and can last for up to three years at the first application (although this may become indefinite when renewed). It involves the Public Guardian authorising how much money may be transferred from the adult's account to a designated account, and gives a certificate to whoever is allowed to open and access the designated account. It can be used for day-to-day living expenses and for paying regular bills. Age Concern England suggests this system be further considered as one way of dealing with concerns about those who, under the proposed general authority, would be regularly accessing another's finances to deal with daily expenses.


  6.1  It should be made clear what powers LPAs and Court-appointed deputies will have to access any relevant information to assist them in their decision making, particularly copies of care plans and health records; and the general relationship between the proposed Bill and the Data Protection Act 1998.

  6.2  The relationship between the draft Bill and the Protection of Vulnerable Adults (PoVA) guidance (as set out in No Secrets) to local authorities needs to be made clear. In particular, we would welcome a strong relationship between the Court of Protection and local authorities in terms of sharing concerns about individuals believed to be at risk of abuse.

  6.3  We understand that, under the draft Bill, it will be possible for at least two people separately to hold, for the same individual, an LPA covering health and welfare decisions and an LPA covering property and financial affairs (this also applies to Court-appointed deputies). Clear guidance will be needed, to both LPAs and Court-appointed deputies, as to how they should work together where necessary in such situations.

  6.4  We believe consideration should be given for mechanisms for "lodging" or otherwise recording advance decisions and advance statements with health or social care bodies (for example, with a person's GP records). This should help both to militate against individuals seeking to hide the existence of others' advance decisions, and assist in considerations of "best interests" by having available advance statements.

  6.5  We believe that Court-appointed deputies should be required to follow the same requirements set out for LPA donees with regards to the limits on their abilities to ignore advance decisions to refuse treatment.

  6.6  Finally, we understand there may be some concerns that the draft Bill does not include matters of decision-making as it relates to taking part in research. Should the Joint Committee decide to move on this point, we would ask that a distinction be drawn between taking part in medical or clinical research, and that of user and carer consultation and involvement through which individuals' personal views and experiences are sought.

August 2003

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