Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

43.Further memorandum from the Department for Constitutional Affairs (MIB 1222)



  This paper about implementing the draft Mental Incapacity Bill aims to provide the Joint Committee scrutinising the Bill with more information on how the Government would propose to deliver the draft Bill on the ground and the benefits that this would bring.

  The summary describes proposed implementation of the Bill as currently drafted and is based on information available in October 2003.


  The current legislative framework for decision making on behalf of those who lack capacity has developed in a piecemeal fashion and does not provide a comprehensive framework. This means that:

    —  there is a lack of certainty in many instances about whether people are acting within the law

    —  too often people are deemed to be incapable of making any decisions, rather than being supported/enabled to make the decisions for which they do have capacity

    —  there are instances where no action is taken, to the detriment of the incapacitated person's well-being, because of uncertainties about the legality of acting

    —  it is difficult to identify abuse/ exploitation and to take action against them unless these are clearly criminal in nature

    —  people with capacity have no way of taking steps to ensure that their wishes about health and welfare will be taken into account should they lose capacity

    —  certain aspects of the common law and case law, particularly the concept of best interests and the validity of advance refusals of treatment, are not widely understood and are open to wide interpretation/misinterpretation

    —  there is no clear final arbiter for decisions made on behalf of adults who lack capacity in health and welfare matters


  The Bill therefore sets out to provide a coherent legislative framework for decision making with or on behalf of mentally incapacitated people, recognising the need to:

    —  maximise the capacity of those who lack or who may lack capacity to take certain decisions for themselves;

    —  protect vulnerable adults with mental incapacity issues from abuse and neglect; and,

    —  provide clarity to families, informal carers and professionals as to when they may act or take decisions on behalf of those incapable of making such decisions themselves.

  The Bill's starting point is an assumption of capacity and its underpinning expectation is that everyone should take as many decisions for themselves as they can. The Bill's primary purpose, however, is to explain how to approach decision making in those cases where capacity is in doubt and/or is shown to be lacking.


  The Bill would:

    —  establish clearly that for the purposes of the decision making process set out in the Bill everyone has the right to be assumed to have capacity unless it is shown (after a prescribed approach) that they do not;

    —  provide clarity for everyone—mentally incapacitated adults, professionals, family members and lay carers about how to approach decision making where someone may lack or lacks capacity;

    —  shift the balance in discussions about decision making away from any presumption of incapacity by stipulating a personalised approach based on the individual's capacity to take every individual decision—ie no blanket label of incapacity

    —  build on the Disability Discrimination Act and the reforms taken forward under Valuing People[1] and No Secrets[2] in ensuring that people with disabilities are able to access their full civil rights and are protected while doing so. The Bill also complements initiatives such as the National Carers Strategy in providing carers with a legal framework for their approach to people who lack/may lack capacity

    —  set out a checklist of factors to consider in assessing a person's best interests after a decision has been reached that they lack capacity, giving a clearer role for those who care for that person to be involved in decision making

    —  by taking account of the principles for decision making set out in the Bill, enable clinicians to treat those unable to give consent when that treatment needs to be given, instead of having to wait until a more serious medical intervention makes this necessary, thereby speeding up the whole clinical process and reducing delay and distress for all concerned.

    —  contribute to the effective delivery of justice by establishing a dedicated and specialist judicial forum. There would be appropriate mechanisms in place to ensure that people are able to access justice in the most appropriate way possible.

    —  for those who wish to prepare for a possible future loss of capacity, allow them to determine who would take health and welfare decisions with and for them should they become incapacitated.

    —  clarify the legal status of advance refusals of treatment by setting out basic requirements as to their validity and applicability

  These benefits are undoubtedly important to the daily living of millions of people, though it is impossible to quantify them.


  The Bill broadly sets out in statute the current common law principles and the current best practice understanding of dealing with mental incapacity. Therefore implementation of the Bill should not require a huge leap in practice in many situations. The Bill should neither require radically new decision making processes to be set up nor an increase in bureaucracy. Rather it will require an embedding of the ethos that the person who lacks capacity is at the heart of the decision making process.

  Professional bodies such as the British Medical Association and the Law Society have already produced "best practice" guidance on assessing capacity and aspects of best interests[3]. The Department of Health has produced guidance and policy statements such as No Secrets, Consent to Medical Treatment[4] and Valuing People which are all relevant. The DCA has recently produced public information leaflets on best practice within the current laws on mental incapacity[5].

  Implementation of the Bill would build on all of the above. We are already seeking to increase awareness of mental incapacity issues and will continue to do so. In addition we envisage that awareness of the Bill, particularly in the health and social care / welfare fields, would be necessary on implementation.


  The draft Bill would require particular services to be provided to those who lack capacity and the people, either acting professionally or informally, who care for them. Our vision for the services to be provided is that they should be:

    —  inclusive;

    —  transparent and accessible;

    —  proportionate to the resources available;

    —  non-intrusive, joined up and flexible, and;

    —  delivered in a way that meets customers' needs.


  To provide this service it would be important to provide guidance to those who lack capacity and decision-makers potentially acting on their behalf. We propose to:

    —  produce a code of practice. This code (or codes) would be developed in close collaboration with key stakeholders and co-ordinated with other Government departments, professional bodies and voluntary agencies who already produce best practice guidance (see attached document)

    —  expand the current provision of telephone advice and assistance to the public by building upon the expertise of the existing Public Guardianship Office under the new Office of the Public Guardian (OPG)

    —  produce plain-English literature and websites on mental incapacity including provision of information and assistance in accessible ways, including accessible information specifically targeted at learning disabled people

    —  work with other Government departments, professional bodies and voluntary agencies on revising or creating guidance available through them on specific, more detailed, mental incapacity issues

    —  create easy to use, clear and informal court procedures, forms and guidance which would enable customers to access the Office of the Public Guardian and the Court of Protection without the need for legal assistance in the majority of cases

    —  provide clear explanations and routes to local and informal alternative dispute resolution methods that avoid the need for adversarial, court-based solutions

    —  continue the role of the Official Solicitor as independent advocate and as advisor on complex, legal matters

    —  provide specialist but limited publicly funded legal advice where this is necessary for cases of particular seriousness and complexity


Creating a Lasting Power of Attorney (LPA)

  Under the Bill adults with capacity would be free to appoint a Financial LPA, a Health & Welfare LPA or both.

  Procedures for creating and registering LPAs would closely follow the current procedures for registering Enduring Powers of Attorney (EPAs). The necessary forms and guidance would be available from the OPG. This should enable people to create LPAs without legal assistance. We anticipate two forms, to protect privacy. Guidance would explain factors to consider when choosing an attorney and explain the seriousness of this decision.

The Bill states that it would be necessary to have a "certificate of capacity" when making an LPA. We are still considering whether this is the most appropriate mechanism as it would increase the cost of making an LPA. It may be more advisable for the making of the LPA simply to be witnessed. We need to consider and consult further as to whether we should specify the people who can act as a witness (as in an application for a passport, for instance).

  Registration of the LPA would be with the OPG. Either the donor or donee could register depending on whether the power is to be used prior to the donor losing capacity. In either case other persons must be notified who would have the opportunity to challenge the registration. The LPA would only be able to be used once it is registered. Once registered the LPA would be clearly marked as "live". A register of LPAs would be held by OPG that could then be searched to identify "live" powers.

  The Court of Protection would only become involved if the registration of the LPA was contested.

Applying for a single Court order, direction or declaration

  Single orders or directions would be required from the Court in order to gain authority for particular decisions. There would be particular requirements for certain financial decisions, as now. Declarations may also be sought from the Court where there is doubt about the scope of someone's powers under the Bill. This occurs now in the High Court under its inherent jurisdiction. For example, if a doctor wishes to be sure that a particular treatment is in a patient's best interests.

  For simple financial matters the application procedure to the Court would be informal and based on existing processes. Legal representation would not be necessary and applications would be dealt with without a hearing. For declarations or orders on more complex health and welfare matters the procedure is likely to be similar to that used now in the High Court and include the involvement of the Official Solicitor.

Applying for the appointment of a Deputy

  For most day to day decisions we envisage that people will be able to act under the general authority.

  A Deputy could be appointed under the Bill where a sequence of decisions, rather than a single decision, need to be made on behalf of a person lacking capacity and where an LPA has not been created or is invalid. There could be Financial and/or Health & Welfare Deputies but the Court is likely to prescribe the powers of a Deputy more specifically than these general categories depending on the capacity of the person concerned and the necessity for Deputy powers. Appointments of Deputies are likely to be made for a limited period that can then be reviewed. It would be important for the powers of deputies to be as limited as possible.

  The procedure of appointment for Deputies would be similar to that currently used to appoint financial receivers. Those applying to become Deputies would need to demonstrate why an appointment is necessary. Stringent checks on the suitability of the Deputy would be undertaken by the OPG. Interested parties would be given notice of the application and have the opportunity to make representations to the court. If the Court deemed it necessary the Official Solicitor would be required to represent the person concerned. Evidence as to the capacity of the individual concerned would be required either from the parties or arranged by the Court.

  For Financial Deputies applications are likely to be dealt with on the papers. For Health & Welfare Deputies it is possible that oral hearings would be more appropriate. Legal representation would not be required in either case. (Save possibly for representation of the incapacitated person by the official solicitor).

A new Court of Protection

  The Bill would create a new court, still known as the Court of Protection, that would deal with all decision making for people lacking capacity. The new Court would have responsibility for:

    —  resolving issues and disputes arising from LPAs, where these cannot be resolved without court intervention

    —  appointing Deputies to take specified financial and health/welfare decisions

    —  making single orders or giving directions on both financial and health and welfare matters

    —  resolving matters where a declaration of lawfulness or capacity is required or where a final arbiter for a dispute is absolutely required. Disputed cases will only go to court where all other dispute resolutions have been exhausted.

  The new Court would allow for cases to be determined by judges of differing seniority and specifically nominated officers (from officers of the court to High Court judiciary) depending on the level of seriousness and complexity of the case. Hearings may take place outside of London (using the existing civil court structure and accommodation) with the administration of the Court of Protection undertaken by a centralised administration.

The Court would operate a permission stage for certain types of applications to ensure that litigation is only brought before the Court when it would be of benefit to the person who lacks capacity and to ensure that all parties have exhausted other methods of reaching consensus before going to court. Cases of urgency could, as now, be dealt with via an out of hours service to provide emergency orders.

A new Office of the Public Guardian

  There would be a new Office of the Public Guardian (OPG), replacing the existing Public Guardianship Office. Both the new Court and the Office of the Public Guardian would build on the existing court and office structures. The OPG would liase and work closely with other agencies in financial, health and welfare areas.

  As now the OPG would have partly an administrative function and partly a supervisory function. It would be responsible for registering LPAs and for supporting the Court. Its supervisory function would be mainly focused on financial decision making (see below). However, it would have a role in identifying and tackling possible abuse with other agencies by providing a focus for concerns and fielding them to the appropriate agency.

  The new Court and OPG would, as now, set fees to cover costs, with a remissions policy where the criteria were met.

Dispute resolution

  By setting the person without capacity and those who support and care for them at the heart of the decision making process, the majority of decisions under the Bill should be made by consensus—through the person-centred approach or through informal discussions.

  Where consensus is not possible we have considered how best to tackle this. Research into family disputes tackled by the courts shows that solutions to very personal family difficulties are least likely to be resolved successfully if determined by a court. We do not therefore wish to suggest that people see the Court of Protection as the proper place for resolving all difficulties and disputes when there are mechanisms that are better suited than the Court. Therefore we are exploring other processes to resolve difficulties in decision making.

Financial decisions

  As financial disputes tend to be more fact-based these would continue be resolved through mechanisms tried and tested in the Court of Protection and Public Guardianship Office.

Health and social care decisions

  We propose to link into existing formal and informal systems in the NHS for resolving many of the disagreements about healthcare, such as the Patient Advice and Liaison Service (PALS) and Independent Complaints Advisory Services (ICAS). Subject to current legislation, from April 2004 the Commission for Healthcare Audit and Inspection (CHAI) will have total responsibility for the independent stage of the complaints procedure. If a complainant remains unhappy after the NHS complaints procedure has been exhausted then they can complain to the Health Service Ombudsman.

  We are also consulting on proposals to reform the way clinical negligence cases are handled in the NHS and proposals for bringing the complaints and clinical negligence systems together. Whatever systems are put in place in the future we are working to ensure that these will be accessible by incapacitated patients when they interface with the NHS.

  In social services difficulties tend to be resolved through discussions to negotiate the care package until it is more acceptable to all parties. There is a formal complaints and independent review procedure, again ending with an Ombudsman. Subject to legislation, from 2004 the new Commission for Social Care Inspection (CSCI) will conduct the independent review stage of the procedure, where a complaint is not resolved at local authority level.

  Where there is joint provision, or other forms of overlap between health and social care, DH are exploring where a joint approach is necessary to ensure a robust and reliable complaints procedure, including for people who lack capacity.

Disputes on other welfare decisions

  We are in discussion with ODPM and DWP to explore the mechanisms available to review disputes in other welfare decisions—e.g. housing, benefits appointees.


As now, it is important that we ensure that those who have authority to act on behalf of adults who lack capacity do not abuse their power.

  Councils with social services responsibilities (CSSRs) have developed non statutory multi-agency Adult Protection Committees (APCs) as part of the Government's "No Secrets" policy. APCs set the general policy on protecting vulnerable adults from abuse in the context of "No Secrets". APCs ensure that multi-agency Codes of Practice are in place and working well. With regard to individual cases of abuse, these are investigated under APC guidelines by individual designated officers from health and social care involving the police, as appropriate. APCs appear to be well-placed to set up and over see the processes needed to deal with cases arising out of the Bill where neglect or ill-treatment are alleged.


  Under the Bill, the Public Guardian has a supervisory role in monitoring LPAs and Deputies. The OPG's supervisory role would be geared to risk and would intrude as little as possible. The focus would be on supervision of Deputies. Deputies would have a new and unique relationship with the person lacking capacity under the Bill and further work is being undertaken to understand how this will affect the monitoring requirements.

  Where there are allegations of possible abuse (of any kind) Office of the Public Guardian would liase closely with all of the agencies and individuals involved, including social services, the police, voluntary organisations and Adult Protection Committees. The existing Public Guardianship Office is already establishing and developing partnerships with local authorities and other bodies to ensure that any concerns about a person lacking capacity are highlighted and acted upon. Work is also in progress to establish an investigation unit.

  The OPG is supported by the currently named Lord Chancellor's Visitors. Visitors would be able to visit attorneys and Deputies if so directed and provide an independent and impartial report on circumstances to the Court.

Health and social care review bodies

  From December 2003, Patient and Public Involvement Forums (PPIFs) will monitor the effectiveness of PALS and will, in 2004-05 become responsible for the provision or commissioning of ICAS. Nationally, PPIFs and ICAS' work will be monitored and co-ordinated by The Commission for Patient and Public Involvement in Health who will report to the Secretary of State. Local Authority Overview and Scrutiny Committees (OSCs) are scrutinising and reviewing health services both in range and standards.

  Subject to Parliamentary approval, CHAI will from April 2004 carry out reviews and investigations into NHS services at both local and national levels (this role is currently carried out by the Commission for Health Improvement). It will also be responsible for the regulation of independent health care.

CSCI will be responsible for monitoring standards of care in residential homes. Part of that remit may well include the accessibility to dispute mechanisms, quality of decision-making and recording etc. The Inspectorate could equally act upon specific concerns to quality assure the service provided in any particular home or group of homes.

Other Review bodies

We are working with ODPM to explore the mechanisms available to review disputes in other welfare decisions—e.g. housing, planning.


  Unfortunately, we are unable to calculate the current costs handling mental incapacity because there is no formal means of recording many of the issues that arise.

  The current running costs of the existing PGO and Court of Protection are £24.6m with £10m collected in fees. These relate to financial decision-making only.

The Official Solicitor has a public subsidy of about £6m overall at present which also covers his Public Trust functions, with approximately £528k directly attributable to the type of cases that would arise under the new jurisdiction. This does not take into account the information and advice provided by both lawyers and caseworkers, which prevent cases coming to court or provide a forum for settlement by discussion and negotiation.

  Outside of the Official Solicitor there are no clear costs for the serious health and welfare disputes which come before the High Court because they are swept up within larger costs.

  We are also unable to say exactly how much at present is spent on provision of legal advice and assistance because mental incapacity is not a category of law currently recorded. The same situation arises in the NHS and social care where there is also no current baseline.


  It follows that all the costs we have estimated below assume a zero baseline of activity apart from figures for the Public Guardian and the Official Solicitor. We have not anticipated that there would be significant costs arising from implementation because the Bill largely builds upon the current common law and best practice.

  Costs identified to date would fall in the following areas:

Set-up costs

    —  public advice and information—there would be costs in producing a code of practice and revising accompanying literature, information and guidance to be made available to the public including providing information and advice in ways that ensure the widest possible access to all areas of society

    —  process changes and expansion at the Court of Protection and PGO—the new Court and OPG would require new systems and would take on new workload

    —  awareness and guidance—it is anticipated that health and social care professionals in particular would need a clearer understanding of the requirements of the Bill

    —  Some costs to voluntary and small business sector—awareness raising and reviewing practice and evidence.

On-going running costs

    —  running costs at the Court of Protection and OPG—these costs should be largely met through fee income

    —  on-going information costs—in particular the telephone advice at the OPG and keeping guidance up-to-date and accessible

    —  costs for the Official Solicitor—there may be a small increase on the current demand

    —  legal aid costs—would be restricted to serious, legal matters so should not increase significantly above current levels

    —  costs of dispute resolution in health and social care—should be mainly absorbed within existing mechanisms, with possible small increases to cover mental incapacity issues

    —  costs of health and social care staff—staff who are currently not adopting best practice would need to deal with people who may lack capacity in accordance with the requirements of the Bill, if they do not do so now, which could increase costs—this is difficult to assess

    —  there may be additional, minimal on-going costs to the small business sector and other local authority costs. These have still to be fully assessed.

Summary of costs

  Preliminary estimates indicate set up costs may be in the region of around £17m and on-going annual costs of a further £18.5m. These are very much initial estimates. Significant refinements are likely before the Bill is introduced in to Parliament. In particular further work will be undertaken to estimate current expenditure. It is likely that final cost estimates will be lower after the expenditure at present has been taken into account.

  Additionally, it has always been envisaged that the consultation and pre-legislative scrutiny will help identify policy developments for the final Bill, which may also impact upon costs. Figures at this stage should therefore be seen only as a rough indication of the likely scale of the cost of the Bill. It is government policy that no Bill is brought before Parliament without its cost implications being fully considered and appropriate funding having been identified.

October 2003

1   Valuing People-A New Strategy for Learning Disabilities for 21st Century-Department of Health White Paper published in March 2001. Back

2   No Secrets-Guidance on developing / implementing multi-agency policies and procedures to protect vulnerable adults from abuse-Department of Health Publication Back

3   Assessment of Mental Capacity-Guidance for Doctors and Lawyers Back

4   Guide to consent for Examination and Treatment Back

5   Making Decisions -Helping people who have difficulty deciding for incapacity


previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 November 2003