113.Memorandum from the Royal College
of Nursing (MIB 924)
The RCN welcomes the, long-awaited, publication
of this draft Bill and the opportunity to comment on it. The RCN
has been lobbying for some considerable time, in collaboration
with other organisations, for legislation to protect vulnerable
The issues of incapacity are wide-ranging and
cut across the whole spectrum of care and are particularly important
in the fields of learning disability, mental health, older people
and children's nursing.
In general the RCN believes that the draft Bill
clarifies a number of legal uncertainties and introduces valuable
new decision making mechanisms to allow healthcare decisions,
and those related to social needs and financial matters, to be
made on behalf of people who lack the capacity to make such decisions.
Furthermore, the RCN is pleased to see the inclusion of carers
issues, and their rights included in the proposed legislation.
The RCN believes that this legislation needs
to address comprehensively the issues of fluctuating capacity,
restrictions on the liberty of individuals and the provision of
adequate and robust safeguards for people who lack capacityparticularly
those people referred to as "Bournewood patients". Furthermore,
the RCN would wish to see synergy between the proposed new mental
health legislation, the incapacity legislation and their respective
codes of practice.
The RCN welcomes the inclusion of "advance
refusals" but believes that the proposed legislation would
be strengthened if attention to "advanced directives",
or statements, were included within it. This issue, arguably,
provides an example of the need for consistency within the proposed
mental health and incapacity legislation, and within their respective
codes of practice.
The RCN suggests that references to consent
should be amended, and strengthened, by using the term "informed"
The RCN wishes to see a fully funded implementation
plan, and clear guidance, to accompany this legislation, when
it is enacted, to ensure that nurses, and others, are properly
prepared for the new roles that they will be required to fulfil.
The RCN welcomes this important proposed legislation
and the principles set out within it, but believes that it would
be enhanced by attention to these issues that RCN members have