Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

31.Further supplementary memorandum from the Law Society (MIB 1215)

  1.  At 1.2 of our submission we take the view that the Bill does not clearly distinguish between persons who acquire mental impairment from those whose impairment has always been present. As stated in the oral evidence, this was an inelegant example and it is one which is best addressed through the use of the general principles in the place of best interests as proposed under the current Draft Bill.

  2.  This point was raised to differentiate between facilitating and encouraging self advocacy from that of substituted decision-making. In our view, the way the Bill is set out, these two solutions are not adequately emphasised and in our view this has caused many organisations promoting the rights of learning disabled people to take the view that their rights are being taken away. Our understanding is that the Bill is not intending to do this and the way in which the general principles are set out may assist the Committee in making their recommendations. It is worth noting that the Scottish Bill was strongly supported by many learning disability groups and was not the subject of criticism in quite the same way as the current draft bill.


  3.  Details have been sent to supplement our evidence in this regard separately.


  4.  A member of the Joint Committee took the view that the question of reasonableness is always an objective test. There is much case law on the issue of reasonableness and whether this is an objective or a subjective test and in the view of the Law Society it would be bad law to legislate using terminology which may increase the likelihood of future litigation. For this reason the Law Society takes the view that whether the reasonableness here is an objective or a subjective test should be made clear on the face of the Bill.

  5.  The suggested text by the Law Society mirrors that contained in the Disability Discrimination Act 1995.


  6.  The Law Society agrees that a checklist would be of some assistance in maintaining a standard for court appointed deputies. However, the content of this list is a matter that warrants careful consideration and our suggestions should not therefore be read as exhaustive.

  7.  We are of the view that, in relation to financial matters, there should be a requirement to provide written financial information subject to a de minimus rule, for example of an estate under £5,000. There should be a requirement to seek the approval of the court in any matter that may have significant effects, either on the financial estate or on the care of the person, for example a change of residence or primary carer. There should be a duty to report concerns such as suspected neglect or abuse of primary carers. The code of practice may be a suitable vehicle for further details and examples to illustrate its application. The Law Society would wish to reiterate that we believe deputies should be subject to a code of practice in as much the same way as attorneys.


  8.  The Law Society have promoted the use of mediation as a mechanism to assist carers, persons under the Bill and professional bodies in the resolution of disputes for which a formal court setting may not be proportionate. Some would argue that mediation in principle sounds like a generally good thing but in practice is expensive and does not resolve disputes, especially in the case of litigious persons. The Law Society would question this, although obviously there are litigious persons and any amount of mediation will not prevent them wanting their day in court.

  9.  By way of background, mediation was introduced in the Family Law Act 1996 and pilot schemes were researched and evaluated extensively. It is agreed that aspects of this provision were problematic; in particular the fixing of timing at an early stage of a divorce, and the limiting of compulsory consideration of mediation to publicly funded clients. Many of these proposals have since been mitigated and at a core level of family mediation work is now firmly established within family proceedings in England and Wales. Contrary to popular belief mediation has proved effective in children disputes, especially those relating to contact. The Law Society takes the view that there is a parallel in children disputes in the case of persons who have mental incapacity. Disputes may often be between different family members and may need input from social services. Mediation is also widely used in finance disputes. There are other small-scale pilots which have been available on other types of ADR schemes.

  10.  Last year approximately 13,000 publicly funded family mediations were conducted in England and Wales and a significant number of disputes were settled as a result of family mediation. Added to this there are disputes that may not have settled immediately but were resolved relatively quickly as a result of the family mediation. Even in cases where parties do go on to litigate, the use of mediation often helps to clarify and narrow the issues for the litigation process. Again a parallel can be seen in how this would assist the work of the Court of Protection. It brings a wider benefit by making the court process more efficient. The Department of Constitutional Affairs is currently looking at wider spread initiatives to increase the use of ADR in other family proceedings. The Law Society would suggest that this should also apply to persons affected by the incapacity legislation.

  11.  As stated in our oral evidence there are many community mediation projects which are up-and-running. For example, disputes which are often acrimonious, expensive and drawn-out can be resolved highly effectively through the skilful deployment of mediation. A number of local authorities have set up or expressed an interest in mediation schemes to resolve neighbourhood disputes. This has also been extended to other forms of disputes such as anti-social behaviour. Although a direct parallel cannot be made in the current legislative proposals, it does however represent a network of mediation projects which is already up-and-running nation-wide on which the DCA may wish to build.

  12.  Perhaps the time has come for mediation to be nationally accredited and professionalised in much the same way as the service of advocacy schemes.


  13.  In the Law Society's opening paragraphs of the submissions to the Joint Committee, we stated that much of the detail on which we comment may be intended to be included in the code of practice. The Law Society would like to take this opportunity to reiterate that on the assessment of capacity, the BMA and the Law Society has some excellent guidance which is freely available. An updated version is shortly to be published. We would consider that this would be an excellent base on which to build a code of practice in this area.


  14.  The Law Society very much welcomes the pre-legislative scrutiny process as a constructive forum where issues can be well thought out, researched and discussed in advance of final drafting. It is particularly conducive to committee style organisations where separate interest groups feed into a larger body. This includes alliances such as the Mental Health Alliance and the Making Decisions Alliance. The Law Society would like to take this opportunity of thanking the Joint Committee for their part in this process and we hope that the information we have supplied will be of some assistance to you.

October 2003

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