Joint Committee on the Draft Mental Incapacity Bill Written Evidence

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 people.

  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 capacity—particularly 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" consent.

  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 raised.

September 2003

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