Joint Committee on the Draft Mental Incapacity Bill Memoranda

1. Summary MDA Response to the Draft Mental Incapacity Bill

1.1 The Making Decisions Alliance (MDA) is a consortium of 28 organisations and groups working with people who may have difficulty making or communicating decisions (see Appendix 6.1; p 30, for our full membership). Our two main aims are:

·  To lobby the Government to introduce mental capacity legislation in the Queen's Speech 2003

·  To increase awareness of the need for new legislation.

1.2 The MDA is delighted that the Government has published a Mental Incapacity Bill for consultation. After 14 years of Government consultation and the publication of four reports and a draft Bill from the Law Commission, we are very pleased that there are now definite plans to develop a legal framework for decision-making for people who may have difficulties making decisions for themselves. For too long, this has been a fundamental gap in the law.

1.3 The MDA believes that the current law does not provide sufficient protection for those who lack capacity or those who look after them. Currently, the law is confusing and fragmented. The range of people who are let down by the current law is considerable. They include adults with severe learning disabilities, people with autism, people with mental health problems, victims of accident, people who develop brain damage and those who lose mental capacity later in life, including those with dementia.

1.4 The current law is also unclear about the legal rights and obligations of an individual who cares for a person who lacks the capacity to make decisions for themselves. Carers are uncertain about what decisions they can and cannot make.[1] New legislation would give clarity to carers on what they can legally do for the people they look after. Legislation would give carers the legal basis to make informal day-to-day decisions on behalf of someone who lacks capacity provided they exercise their authority in the best interests of that person. Professionals will also be clearer about how to represent the interests of people who lack capacity with whom they are working.

1.5 The current law gives a number of different answers to defining mental capacity. There is no statutory definition of mental capacity. It may not be clear whether an individual lacks capacity in relation to a particular decision. New legislation would ensure that the variety of different tests would be replaced with a single, straightforward statutory definition. This would introduce certainty and clarity. A definition of capacity would relate to a particular decision and would rest on an ability to understand the information relevant to that decision. Legislation should also give people greater rights to have a say in their own lives and to make their own decisions, unless they have been independently assessed as unable to do so.

1.6 The MDA believes that procedures are needed to resolve disputes and difficulties. There is currently no legal mechanism for resolving problems about personal care and welfare. A person who has diminished or fluctuating capacity may not be able to choose a person to make decisions on their behalf. These issues would be addressed in new legislation - for instance, the new Court of Protection would have the power to make decisions about the care or welfare of a person who lacks the capacity. The judicial option would be available where disputes arose and would provide an easy means of appeal if disagreements cannot be resolved.

1.7 The MDA principles for reform

·  People should be treated as individuals and their right to make their own decisions should always be respected. The law should assume that people are capable of making decisions unless the contrary is proved.

·  Capacity should be determined in relation to a particular decision at the material time and should avoid generalisations that may unnecessarily restrict a person's right to make their own decisions.

·  People who have difficulty making decisions should be supported to make their own decisions rather than having decision-making taken out of their hands.

·  Where someone needs support to make a decision or a decision is being made on their behalf, they should have the right to the support of an advocate to help them make the decision and to ensure that they have a say in the decision-making process.

1.8 Although the first three principles are enshrined in the preliminary clauses (2-4), the MDA does not feel that the Bill currently contains sufficient mechanisms to ensure that these principles are implemented in practice. This is why we are continuing to press for the inclusion of advocacy and advance statements on the face of the Bill and for additional safeguards in relation to the General Authority (see Sections 5b: pp 20 - 24; 5a: pp 18 - 19; and 4.5: pp 8 - 12 respectively, for full responses).

1   In this submission and the appendices, 'carers' is used to refer to friends and relatives who provide unpaid care. Those who are engaged in the provision of care services are referred to variously as 'professionals', 'care workers' or 'paid carers'. Back

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