43.Further memorandum from the Department
for Constitutional Affairs (MIB 1222)
IMPLEMENTING THE DRAFT MENTAL INCAPACITY
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 everyonementally
incapacitated adults, professionals, family members and lay carers
about how to approach decision making where someone may lack or
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 decisionie no blanket
label of incapacity
build on the Disability Discrimination
Act and the reforms taken forward under Valuing People
and No Secrets
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
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
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
The Department of Health has produced guidance and policy statements
such as No Secrets, Consent to Medical Treatment
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.
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:
transparent and accessible;
proportionate to the resources available;
non-intrusive, joined up and flexible,
delivered in a way that meets customers'
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
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
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
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
The Court of Protection would only become involved
if the registration of the LPA was contested.
Applying for a single Court order, direction or
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
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
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
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
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 consensusthrough the person-centred approach or through
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.
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
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 decisionse.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
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 decisionse.g.
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
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
Costs identified to date would fall in the following
public advice and informationthere
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 PGOthe new Court and OPG would
require new systems and would take on new workload
awareness and guidanceit is
anticipated that health and social care professionals in particular
would need a clearer understanding of the requirements of the
Some costs to voluntary and small
business sectorawareness raising and reviewing practice
On-going running costs
running costs at the Court of Protection
and OPGthese costs should be largely met through fee income
on-going information costsin
particular the telephone advice at the OPG and keeping guidance
up-to-date and accessible
costs for the Official Solicitorthere
may be a small increase on the current demand
legal aid costswould be restricted
to serious, legal matters so should not increase significantly
above current levels
costs of dispute resolution in health
and social careshould be mainly absorbed within existing
mechanisms, with possible small increases to cover mental incapacity
costs of health and social care staffstaff
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 coststhis
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.
1 Valuing People-A New Strategy for Learning Disabilities
for 21st Century-Department of Health White Paper published in
March 2001. Back
No Secrets-Guidance on developing / implementing multi-agency
policies and procedures to protect vulnerable adults from abuse-Department
of Health Publication www.doh.gov.uk/scg/nosecrets.htm Back
Assessment of Mental Capacity-Guidance for Doctors and Lawyers
Guide to consent for Examination and Treatment 2001-www.doh.gov.uk/consent/guidance.htm Back
Making Decisions -Helping people who have difficulty deciding
for themselves-www.dca.gov.uk/mental incapacity