34.Memorandum from Values into Action
1. Values Into Action (VIA) has been working
since 1971 to promote and support the development of good, positive
policies and practices towards people with learning disabilities.
We are entirely independent and promote only the interests of
people with learning disabilities. We carry out our work through
research and development, publications, training and conferences.
2. VIA has a long history as a leader on
decision-making issues. We have researched the theory, practice
and implementation of current and potential systems of supporting
people to maximise their decision-making capabilities within a
legal context, and have published widely on the subject (see list
of publications on page 4, one of whichMaking Decisionsis
3. Over a number of years we have advised
and liaised with officials at the Department for Constitutional
Affairs, and are pleased that draft legislation has now been produced.
However, we are dismayed that less than two months, in the height
of the holiday season, was allowed for submission of written evidence
to the Joint Committee. This is important legislation and every
effort needs to be made to ensure that the interests and safety
of the many people who will be affected by it are properly represented
4. The present draft Mental Incapacity Bill
contains a number of elements which we support. We are pleased
(a) the Bill recognises that people may have
the capacity to make some decisions whilst they may not be able
to make others (Clause 1);
(b) all practicable steps will have to be
taken to help a person make a decision before they can be judged
as unable to make it (Clause 2);
(c) there is a presumption against lack of
capacity until and unless it is established that the person lacks
capacity (Clause 3);
(d) the person must be involved in the decision
as far as possible, and their views and those of others in their
lives taken into account (Clause 4).
5. However, VIA is extremely concerned about
the nature and scope of the general authority as set out in Clauses
6 and 7. As currently proposed the general authority represents
a potential threat to the safety, satisfaction and wellbeing of
anyone at risk of being judged to lack capacity. In particular,
(a) may be exercised by anyone "when
providing any form of care" (Clause 6(1)) regardless of who
the individual is or the nature of their relationship with the
(b) may be exercised by a range of individuals
acting independently with no overview or plan for the person in
(c) may be exercised by a single individual
over a long period of time according to their own personal view
of the person's needs and preferences;
(d) are not subject to any form of monitoring,
review or other safeguards;
(e) are not susceptible to challenge except
by appeal to the Court of Protection;
(f) cut across the provisions noted above
in Clauses 1, 2, 3 and 4, in that "reasonable" belief
that someone lacks capacity will effectively nullify the intentions
of Clauses 1, 2 and 3, whilst "reasonable" belief that
their decision is in the person's best interests will effectively
nullify Clause 4.
6. The Government's 2001 White Paper Valuing
People: A New Strategy for Learning Disability in the 21st Century
directs that person-centred planning be an integral part of decision-making
around a person's life. Person-centred planning requires that
all decisions are reached with maximum possible input from the
person, and reflect what the person would really want. To achieve
this where someone's decision-making capabilities are limited
(perhaps extremely limited) requires the use of supported decision-making
techniques (see the enclosed publication Making Decisions). It
is a matter of concern that the draft Mental Incapacity Bill takes
no account of either person-centred planning or supported decision-making,
and sets up a separate and antithetical decision-making avenue.
7. All people with learning disabilities
are able, with support, to indicate their preferences and thereby
help to determine the course of their own lives. Their right to
do this is enshrined in the Human Rights Act 2000 and underlined
by Valuing People. However, because these abilities and rights
are not recognised by the draft Bill many people with learning
disabilities will find themselves excluded from decision-making
altogether. The general authority, as it now stands, will enable
other people to decide for themselves that someone lacks capacity,
and then to decide for themselves what that person should do throughout
the course of their life, with no oversight, no regulation and
no easy system of challenge. It will be up to the person who is
deemed to lack capacity to make their own complaint to the Court
of Protectiona highly unlikely scenario, especially given
the total absence of advocacy support in the Bill.
8. VIA believes that the draft Mental Incapacity
Bill, and particularly the general authority, far from protecting
vulnerable people actually substantially increases their vulnerability.
We strongly recommend that the whole notion of the general authority
be completely re-thought before the Bill progresses farther.
9. We further believe that the following
changes to the general authority would help to reduce the potential
harm to vulnerable people, including people with learning disabilities:
(a) The general authority should cover only
minor decisions. Guidance should be issued on which decisions
would fall within the remit of the general authority and which
would need to be referred to the Court of Protection.
(b) The Bill should require records to be
kept of all decisions made, including what the decision was, who
it was made by, the reasons for it being made, how it will benefit
the person and how the person was involved in it.
(c) Decisions under the general authority
should be taken jointly by at least two people, one of whom should
not be a member of the person's family or services.
(d) Complex or difficult decisions should
require the involvement of additional people.
(e) Guidance is needed on the interpretation
and prioritisation of "best interests".
(f) Every decision made should clearly be
to the benefit of the person deemed to lack capacity.
(g) No person acting under the general authority
should benefit from any decision made.
(h) The Bill needs to set out a process of
decision-making which would incorporate the steps to be taken
to ensure the fullest possible participation by the person deemed
to lack capacity.
(i) New guidance is needed on the use of
supported decision-making to ensure the fullest possible involvement
of the person deemed to lack capacity.
(j) The Bill needs to state the role to be
played by person-centred planning.
(k) The Bill should provide a system for
the monitoring, review and challenge of decisions taken under
the general authority.
(l) There needs to be a local, informal and
easily-accessible court to facilitate decision-making, mediation
(m) Use of force and restraint under the
general authority should not be lawful.
(n) The Bill should provide adequate resources
for advocacy services to ensure that all people at risk of being
deemed to lack capacity have access to advocacy.
10. I have already informed the Assistant
Clerk to the Joint Committee that we would welcome the opportunity
to provide oral evidence. I now wish to confirm that we would
very much like to discuss and explain further the points made
in this paper.