Joint Committee on the Draft Mental Incapacity Bill Memoranda

2. Summary of MDA key recommendations for additions and amendments to the Bill

2.1 General

·  Name of the Bill should be amended to the Mental Capacity Bill to reflect the presumption of capacity enshrined in the Bill

·  Presumption of capacity should be moved from clause 3 to clause 1 to reflect and promote its fundamental importance.

2.2 General Authority

·  General Authority should be explicitly subject to the presumption of capacity

·  Clause 6, subsection (1) - 'or person reasonably believes that P lacks' to be deleted

·  Consent in medical treatment to be removed from the remit of the General Authority

·  Significant decisions removed from the remit of the General Authority, unless justified by immediate necessity

·  The General Authority should not be assumed but should instead be triggered, for instance a case conference involving all those concerned with a person's care

·  The continuing need to act under the General Authority should be reviewed as part of a person's care programme.

2.3 Restraint

·  Throughout the Bill, restrain should always be justified only if risk of serious harm is immediate (for example clause 7 (General Authority), clause 10 (LPAs)).

2.4 Monitoring

·  The Bill should create a duty on local authorities to intervene in cases of suspected abuse, including abuse of the General Authority.

2.5 Lasting Powers of Attorney (LPAs)

·  Clarity on the parameters for LPAs is needed, comparable to that given on the powers of Deputies in clauses 17 and 18

·  LPAs must be established within a clear hierarchy of decisions, in which they should 'trump' other powers with the exception of Advance Directives and decisions of the Court of Protection.

2.6 Deputies

·  Deputies should be made subject to Advance Decisions.

2.7 Court of Protection

·  Court of Protection should be required to investigate potential conflicts of interest on appointment of Deputies and on the activation of LPAs

·  The Court of Protection should be made accessible to adults with impaired capacity

·  Legal aid and other financial assistance should be given to all such adults to support applications to the Court.

2.8 Advocacy

·  There should be a legal right to access independent advocacy when formal powers are applied for, and a subsequent duty on the Secretary of State to provide sufficient advocacy services to deliver this

·  Advocacy support should be available if required when significant or life-changing decisions are contemplated under any of the powers established in the Bill

·  Individuals without other formal or informal networks of support should be prioritised for advocacy support.

2.9 Other significant omissions

·  Appointeeship system to be regulated under the Mental Incapacity Bill, with appointees subject to the same list of duties as other substitute decision-makers

·  Advance statements to have superior status to other expressions of 'wishes and feelings'

·  Assessment should defined within the Bill.

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