Joint Committee on the Draft Mental Incapacity Bill Memoranda

5 - Omissions from the Bill

a - Advance Statements

The MDA suggests that the Bill should enshrine in law a person's right to make an advance statement. A person should be able to specify their wishes and plans in advance in case they become unable to make decisions for themselves.

5a.1 An advance statement is a declaration that an adult gives about the care and support they would wish to receive. One of the types of statement that can be given is an advance directive where an adult refuses in advance a specific medical treatment or procedure. At present, this is the only form of advance statement that is legally binding on professionals, as established through case law. Advance directives are also included on the face of the draft Bill.

5a.2 Advance statements and advance directives provide the opportunity for adults with capacity to state their wishes and plans in advance, in case in the future they become temporarily or permanently unable to make decisions or communicate their wishes. Advance statements also protect the principle of consent and ensure that crucial life decisions are not reliant upon the assumptions of professionals involved, particularly with regards to decisions about quality of life. This is why the MDA believes that advance statements should also appear on the face of this Bill.

5a.3 Advance statements enable an individual to express their views and preferences on a large range of issues, including:  

·  domestic arrangements

·  treatment preferences

·  financial arrangements

·  childcare arrangements

·  clarification of who to disclose information to, and the limits of what can be discussed

·  whom they would nominate as a 'nominated person' in future Mental Health legislation.

Furthermore, advance statements provide both additional safeguards and direction for a person acting for someone who has lost capacity.

5a.4 The MDA proposes a requirement for a person acting under a General Authority, a 'Welfare' Lasting Power of Attorney or as a Deputy appointed by the court of Protection to act in accordance with an individual's advance statement. In Clause 2, subsection (2) the existence of an advance statement would provide guidance around the "practicable steps" to assist those helping someone who is unable to make decisions. In Clause 4, the existence of an advance statement would give a clear indication of all those involved in making decisions on someone else's behalf of the person's 'best interest', especially as an indication of the person's "past and present wishes" (Clause 4, subsection (2)(c)(I)).

5a.5 Advance statements should be subject to the same conditions as advance directives, namely that advance statements meet the criteria of validity and applicability, and are deemed to be reasonable and in the person's best interests. In addition, clause 32, which relates to destroying or concealing an advance decision, could also be extended to include advance statements.

5a.6 The Explanatory Notes published alongside the draft Bill state that 'Many forms of advance statement will be relevant as the 'past wishes of P' mentioned in the best interests checklist in clause 4.' However, failure to state the legal position of an advance statement on the face of the Bill will undermine its value as a mechanism to plan for impaired capacity.

5a.7 The value of an advance statement is that it is an expression of the individual's views and may be the only means by which the person can communicate this in the future. This gives it, as a document, substantial importance and as such there should be clear guidance about how it fits within the wider powers within the Bill

5a.8 It is possible to legislate for advance statements, indeed it is required, in order to give clear legal guidance on their legal validity, the necessity for and boundaries to which professionals are obliged to follow their requests and the circumstances in which they can be overridden. Furthemore, as the Bill stands, an advance statement will not have the same legal status or validity as an advance directive and thus will not receive the same protection from abuse, undue influence when completed, or destruction.

5a.9 Advance statements would give effect to a person's wishes and act as a safeguard in relation to the other formal powers under the Bill. Consultation of any available record of an advance statement would therefore be one of the 'practicable steps' that must be taken (clause 2(3)) before an assessment of the person's capacity is undertaken. This would reassure people that their views and wishes will be considered irrespective of any future incapacity and could offer concrete protection from neglect. In specific circumstances, it would be a positive opportunity for an individual to record their wish for them to receive life -sustaining treatment.

5a.10 In complex situations, advance statements could act as a vital communication tool, clarifying and informing decisions making for professionals and carers. Around the time of completion of an advance statement they will facilitate further discussion and future planning. This will be beneficial in later decision-making, potentially assisting in avoiding conflict and disputes. It would also prevent the lack of information or representation that can result in decisions being made that are contrary to the person's views or culture.

5a.11 Advance statements could indicate whom the individual would and would not consider reasonable to act under the General Authority, should they lose capacity at some point in the future. This would clarify a potential area of conflict and provides a more accessible, less bureaucratic alternative to the 'Welfare' Lasting Power of Attorney. It would act as another process by which an individual's views could be considered; this is particularly important for those who are isolated and do not have someone in their lives who know them well enough to make decisions on their behalf under the powers of the General Authority.

5a.12 It is vital that everyone is aware of the existence of either an advance statement or/and an advance directive. We would hope there would be guidance on the importance of 'registering' them with all the professionals involved, including both the medical and social care team. We suggest that this is clarified in further guidance regarding this area.

5b - Omissions from the Bill - Advocacy

The Making Decisions Alliance believes access to independent advocacy could be a vital mechanism for ensuring the needs and rights of the individual remain at the forefront of this Bill and that its overarching principles are fulfilled. It also strongly believes that access to independent advocacy could help prevent drawn out and distressing disputes and help avoid costly recourse to the Court. Consequently it believes that Government should take responsibility for providing the resources necessary to ensure that access to independent advocacy is available to those who need it. Appendix 6.2 details recent Government initiatives that mention advocacy.

5b.1 When should independent advocacy support be made available?

Ideally, an individual should have access to independent advocacy whenever they feel they want or need it. However, we appreciate that in a world of limited resources this may not be possible. For the purposes of this Bill, we are particularly concerned that independent advocacy is available in the following situations:-

·  When capacity is being assessed in relation to a major life changing decision.

·  When a major life changing decision is being made

·  When disputes around the above situations arise

·  When a court-appointed Deputy is to be appointed, a Lasting Power of Attorney is being set up or activated, or a single order of the Court is being made.

5b.2 In addition, the MDA believes that individuals without other formal or informal networks of support should be prioritised for advocacy support. This should be clarified in a Code of Practice on Advocacy in relation to Mental Incapacity.

5b.3 What is advocacy?

There are numerous definitions of advocacy in existence. The Independent Advocacy Consortium defines it as 'taking action to help people to: say what they want; secure their rights; represent their interests; and obtain services they need'.

5b.4 Essentially, advocacy is about empowering people, by enabling them to be more actively involved in the decisions that affect their lives. A good advocate will possess the skills and training not only to help a person speak up for themselves, but also to establish what their preferences are, even when these cannot be communicated in conventional ways. They will also respect the particular needs and values of people from different minority ethnic communities or faith groups. An advocate is not there to express or impose their own views but to act as a facilitator and to support the individual to express themselves. In addition, they should be independent of the organisation that a person is dealing with to avoid potential conflicts of interest.

5b.5 There is a wide range of advocacy models available, including Citizen Advocacy, Peer Advocacy, and paid professional advocacy (see definitions in appendix 6.2: p32, 6.2.3). In some instances a person may need an advocate in relation to a particular decision, while at other times or for other individuals a longer-term relationship is more appropriate. The MDA does not believe that there is only one acceptable model of advocacy. The choice of advocacy used should be based on the individual's own needs and wishes, and take account of what provision is available locally. However, regardless of the chosen model, the independent advocate must be adequately trained for their role.

5b.6 Advocacy is not the only way of ensuring that individuals who may have difficulty making decisions or expressing their views can participate in decision-making. Other support mechanisms such as mediation or interpretation services, service user self-help groups and legal representation at the Court of Protection may also play a valuable role. However, independent advocacy is an extremely valuable tool in securing an individual's right and preferences.

5b.7 The potential benefits of Advocacy in the context of mental incapacity legislation

Ideally an advocate:

·  is independent - has no axe to grind, no history, no vested or conflict of interests

·  can be a very effective safeguard, flagging up concerns or queries to the appropriate authorities

·  understands the abilities of the individual

·  is focussed on the needs and views of the individual and ensuring that these are given voice, not the people or institutions around them (person centred)

·  is trained not to take a view of their own, only seeking to uncover or communicate the individual's, BUT

·  may be able to contribute to the assessment of capacity by highlighting what they know or can glean about the individual's abilities or preferences.

5b.8 An individual may need an independent advocate because of a condition or disability they have, their life experience, their impaired ability to communicate conventionally or some combination of these. Their need may also stem from the type and importance of decision being made: individuals may need assistance to make some types of decision but not others. Even people who are incapable of making a particular decision may be enabled by an independent advocate to express or communicate preferences, which could assist those around them and make them feel sure that they are acting in the best interests of that individual. Such input could also help to develop an individual's capacity to participate in making decisions over time.

5b.9 Alternatively, an individual's life experience (often linked to their experience of how society and institutions have reacted to them and their impairment) may also have an impact on their ability to make certain decisions. An example would include someone who has lived in residential care for all or most of their lives or have lived with family members who have made all the key decisions relating to them. This person may be about to move into independent living and, although their condition may not be directly affecting their mental capacity, they might still need some initial or ongoing support around choices and decisions that affect their lives.

5b.10 Some people may have the ability to make such decisions but may not communicate in conventional ways. There is a risk that people may make inaccurate assumptions about the ability of these individuals to make decisions. Conversely, other people may appear to have highly developed communication skills that may mask difficulties in making certain types of decisions.

5b.11 When in the Bill should access to advocacy be available?

The draft Bill sets out a number of ways in which an individual will be able to make decisions on behalf of adults who lack capacity. The MDA feels that access to an independent advocate could be extremely beneficial to the person at the centre of these situations. They could ensure that every effort is made to utilise and accurately assess the capacity the individual has and that the person's viewpoint and preferences is explored and taken account of as far as possible.

5b.12 - Advocacy as a safeguard for the General Authority

The draft Bill says very little about the mechanisms by which capacity will be assessed. However, in view of the wide powers under the General Authority, it is likely that in most cases an assessment of capacity will be made by the professional or carer most relevant to the particular decision to be made, rather than a person who is specifically trained to assess mental capacity.

5b.13 The MDA is concerned that those making assessments of capacity may not understand the wide range of conditions that can affect people's ability to make decisions or communicate their views or have all the skills, knowledge, time or up-to-date awareness of equipment, which may be necessary to accommodate these different impairments. It may also be particularly challenging to assess the capacity of people whose condition fluctuates.

5b.14 This is likely to be particularly important where life changing decision are being contemplated (see below) .The MDA has consequently recommended that certain major decisions be removed from the General Authority and that other arrangements are put in place when such decisions are made (see Section 4.5: pp 8 - 12).

5b.15 The MDA believes the potential involvement of an independent advocate in such circumstances could help ensure the individual's capabilities are being respected and their views included. It could also help others ensure they are optimising the involvement of the individual in the decision-making process, accessing all the relevant information about the person and so helping them fulfil their legal duties. Similarly, when there is a dispute or a desire to appeal against assessment of capacity decision itself, the individual concerned may find the services of an independent advocate an essential safeguard in preventing loss of control over their lives and decisions.

5b.16 — Making major decisions or in important situations

The MDA is concerned about how the General Authority is defined and where the line should be drawn between informal decisions and more important decisions. For example a decision on how an individual spends their days may not appear to be a major decision, but it could have a major impact on someone's quality of life.

5b.17 The MDA believes it is possible to set out some major life changing decisions or situations where access to an independent advocate will be vital to ensuring that the individual's needs are properly addressed and their preferences taken on board. If the person has been assessed as capable of making the decision, they may need such help to think through their decision or express their views; if not, an advocate can help the individual express their preferences.

5b.18 Among the major life changing decisions or situations the MDA believes access to independent advocacy support should be available are:

·  invasive surgery

·  long term treatment with significant potential side effects and other major medical treatment

·  issues where the individual lives (including independent living options and hospital discharge)

·  who they live with

·  what work they do or how

·  where they spend their day or time

·  who provides their personal care, and

·  who manages their money.

5b.19 — Disputed decisions

MDA members and advocacy organisations are often asked for assistance when conflict arises between the individual, their families and professionals involved. Clearly, each of these groups has legitimate needs, pressures and concerns of their own which should be acknowledged. However, the most important person involved is the individual and their views should usually take precedence. Mediation or Court action might be necessary to resolve this situation, but the involvement of an independent advocate in this process can ensure that the particular views and preferences of the individual are communicated effectively (An opportunity for the individual to challenge the decision reached may also be necessary).

5b.20 Access to independent advocacy may be particularly important in dispute situations when the individual is feeling unable to represent their own views clearly, perhaps due to illness; if their views contrast or conflict with the needs and views of those around them; or if they are unconventional or quirky, as this could be interpreted by others as indicators of a lack of capacity.

5b.21 — Advocacy Preventing Abuse

The General Authority envisages a very 'closed relationship' between individual and carer which is not monitored by a third party to prevent or deal with disputes or potential abuse. The involvement of advocacy could reduce the risk of abuse. It could also support those with limited or fluctuating capacity to navigate existing complaints mechanisms such as PALS, ICAS or various Ombudsmen where the problems relate to statutory services.

5b.22 — Advocacy as a safeguard when a Lasting Power of Attorney, a Deputy or a Single Order occurs

The MDA believes that access to an independent advocate could be a very valuable safeguard in relation to an appointment of a Lasting Power of Attorney, a Court appointed Deputy or when single orders of the court are being considered.

5b.23 An independent advocate could help explain and support a person through potentially confusing and alienating processes such as court hearings. An advocate could assist in exploring and explaining what the individual feels is in their best interests and support them in continuing to make those decisions they are able to make for themselves.

5b.24 Independent advocates could provide support when an individual is setting up an LPA or revoking it. They could help people with fluctuating capacity to insist that they do have capacity to take decisions and that an attorney or Deputy is not needed to act on their behalf. They could also assist an individual in supervising an Attorney around financial matters.

5b.25 Access to the advocate could be triggered by anyone involved in the case who felt the needs and views of the individual were being ignored or overridden.

5b.26 Proposals to ensure that independent advocacy is available to all adults with impaired capacity

The Government should provide funding to ensure that every local authority area has an independent advocacy service that has the capacity to provide independent advocacy support for people affected by the Bill. This may mean providing funding to existing services or provide funding for new services.

5b.27 We would also recommend that each ICAS service has a named person to advise on the new legislation and good practice and to signpost individuals, families and professionals to appropriate sources of advocacy and/or undertake advocacy when there is a crisis e.g. life threatening situation

5b.28 There should be a duty on professionals (social workers, medical staff, lawyers, care staff or agencies) responsible for the capacity assessment to involve an advocate where a key life changing decision needs to be taken.

5b.29 There is much to learn from the experience in Scotland where there is a requirement for local advocacy strategies to be set in every local authority area the creation of an Advocacy Safeguards Agency, which facilitates the development, evaluation, research, and dissemination of good practice around independent advocacy.

See Appendix 6.2: page 32, for answers to frequently asked questions on advocacy.

5c - Omissions from the Bill - Appointeeships

Appointeeships are not included in the draft Bill, but MDA believes this area of welfare provision is also highly pertinent. Appointeeships are arrangements that involve the handling of an individual's state benefits, and are set up through the offices of the Department for Work and Pensions (DWP). There are few statistics on the number of appointeeships held; in 1996, figures provided from the Lord Chancellor's Department suggested that 214,482 older people had such an appointeeship arrangement (many others may also use an agent to collect monies on their behalf, usually from banks, building societies or post offices).

5c.1 Appointee action is normally instigated by an application from the prospective appointee. An officer from the Department for Work and Pensions (or local authority for housing benefit) will then interview the incapacitated person to confirm that they are unable to manage their own affairs. If there is any doubt about the person's capabilities, medical evidence should be obtained. The officer will also interview the applicant to explain the responsibilities of an appointee and confirm that they are suitable to act.

5c.2 Appointees have access to all the state benefits to which someone is entitled to receive (for example, state retirement pension, Disability Living Allowance or Attendance Allowance, Income Support/Pension Credit), but not to other monies (for example, occupational pension or savings other than accrued benefits), which may currently be under the control of an EPA or receiver. Although guidance to DWP staff makes clear that if there is already an EPA or receiver then appointeeship is not appropriate, it is not unknown for an appointee and an EPA to be acting at the same time. For those whose only income is via benefits (for example, those pensioners who do not have an occupational pension) it means that the appointee has control over the whole income if the person has been assessed, on the current 'one-off' occasion by DWP staff, as being mentally incapable of managing their financial affairs. This system does not accord with the principles of the draft Bill. Nor does it give people protection as there are few checks made by the DWP on appointees.

5c.3 While the MDA believes it to be very important that there is a system to enable financial decisions to be made on behalf of people dependent upon welfare benefits who lack capacity it is very concerned that the current system is potentially open to abuse and exploitation. Examples of this, taken from recent Parliamentary Ombudsman's Annual Reports are given in case studies 1 and 2, 5c.5 - 5.c6: p 26.

5c.4 Given that people with impaired capacity who are dependent upon welfare benefits are likely to be even more vulnerable than those with access to independent income/financial assets, as indeed potentially are their carers/family members, loss of control over their personal finances is likely to represent a major event in their life. The MDA therefore believes that appointeeships should be brought within the scope of the Bill. Decision-making as to whether someone should be subject to an appointeeship should require a proper assessment of the person's capacity in relation to their ability to make financial decisions. Appointees should be bound to the same 'best interest' principles as those operating as Deputies or Donees of LPAs. A clear system of monitoring and reviewing appointeeships should be put in place to support this.

5c.5 Appointeeship Case Study 1 - an example of fluctuating capacity

The Pension Service: failure to investigate fully whether to revoke an appointeeship

5c.5.1 Mrs W complained of events from January 1998 when The Pension Service had received notification that she had been admitted to a residential nursing home for elderly mentally ill people. In June The Pension Service had accepted an application by her daughter, Mrs X, to be her appointee but had failed to investigate fully whether Mrs W remained incapable of managing her own financial affairs when that question arose in May 1999. Had they done so, it was most probable that they would have revoked the appointeeship at an earlier stage.

5c.5.2 The Ombudsman found no evidence of maladministration in the way in which The Pension Service had reached the decision for Mrs X to be Mrs W's appointee. However, they had failed to investigate fully whether Mrs W remained incapable of managing her own financial affairs. The Chief Executive wrote to Mrs W offering her personal apologies. The Pension Service paid Mrs W £317 for loss of personal expenses allowances, £1,750 for loss of disability living allowance and £340 for loss of use of those monies. They also made a consolatory payment of £200 for the gross inconvenience, embarrassment and severe distress Mrs W had suffered as a result of their actions.

5c.5.3 Parliamentary Commissioner for Administration - Annual Report 2002-2003

Chapter 3 - Investigated cases - The Department for Work and Pensions and its Agencies, including the Appeals Service


5c.6 Case Study 2 - how those with appointees may be vulnerable to abuse

Benefits Agency: alleged improper appointment of an appointee

5c.6.1 Mr A was unable to handle his own affairs after his discharge from hospital and the Benefits Agency (BA) appointed a neighbour to act for him, and receive his benefit. Mr A subsequently alleged that the neighbour had misappropriated the benefit. The Ombudsman criticised BA for their poor recording of the circumstances surrounding the appointment of the appointee but found no evidence that the decision had been maladministrative. The Chief Executive undertook to remind staff about the importance of good record keeping; and to consider amending the instruction on appointeeship to include a requirement to notify customers on the appointment of an appointee. He apologised for shortcomings in the handling of the case.

5c.6.2 Parliamentary Commissioner for Administration - Annual Report 1999-2000

Chapter 3 - Investigated cases - The Department for Work and Pensions and its Agencies, including the Appeals Service


5d - Omissions from the Bill - Assessment

The MDA fully supports the presumption of capacity set out in clause 3 of the draft Bill. The MDA does not wish to see the ability for any adult to make their own decisions infringed without an independent assessment of that adult's capacity. The draft Bill does not explain how assessment will work in the context of this new legislation, and we believe this omission must be addressed.

5d.1 The nature of capacity in the draft Bill is set out in clauses 1 and 2 (see MDA response on clauses 1-7). In relation to assessment, it is important to highlight that a person only lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself (MDA emphasis). The literal interpretation of this clause would require a continuous assessment of capacity each and every time that person was faced with a similar decision, but this would not be in the interests of the individual concerned, their carers or the relevant professionals.

5d.2 However, the MDA believes it is equally unacceptable for the draft Bill to erode an individual's right to make their own decisions before capacity has been accurately and independently assessed. The MDA would suggest that this would be a gross infringement of article 8 of the European Convention on Human Rights as enshrined in the Human Rights Act:

5d.3 'Everyone has the right to respect for his private and family life… There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

5d.4 The MDA believes that very few of the vulnerable adults we represent are totally unable to make their own decisions. Instead we view capacity as a sliding scale, with a person's ability to make their own decisions determined by a range of external factors, including time, physical location and the support available to them. Given that most vulnerable adults will fall between absolute capacity and an absolute inability to make decisions, the importance of assessment in underpinning the work of the draft Bill cannot be overstated.

5d.5 Given its fundamental importance, coverage of assessment in the draft Bill is alarmingly sparse. Presentations by officials have made clear that substitute decision-making should always be a last resort (clauses 2-4). Yet nowhere in the draft Bill are mechanisms set out by which the application of this principle of last resort will be monitored and by which abuses of the powers, in particular the General Authority, will be reined in.

5d.6 'Assessment' is not included within the list of expressions defined in the Bill at Clause 50, subsection (3); the MDA believes that 'assessment' should be clearly defined. In clause 30, subsection (1)(a), the Lord Chancellor is required on enactment to prepare a code of practice for the guidance of persons assessing whether a person has capacity in relation to any matter. The MDA seeks clarification as to the legal status of this Code of Practice, and to any sanctions that will be applicable if the Code is breeched or ignored.

5d.7 In Clause 15, subsections (a) and (b), the Court of Protection is empowered to make declarations as to whether:

·  A person has or lacks capacity to make a decision specified in the declaration

·  A person has or lacks capacity to make decisions on such matters as are described in the declaration.

5d.8 In detailed discussions prior to the drafting of the Bill, officials confirmed that the functional approach to assessing capacity set out in the Making Decisions policy paper would be followed in the Bill. Making Decisions describes the functional test as, 'whether the individual is able, at the time when a particular decision has to be made, to understand the nature and effect of the decision'. Making Decisions explicitly states that the functional approach is designed to prevent unnecessary intrusion into an individual's affairs and to provide the flexibility necessary for individuals whose capacity to make decisions fluctuates, such as some people with mental health problems.

5d.9 The first power of the Court of Protection, to make a declaration as to whether an individual lacks capacity to make a specific decision, is in accordance with the functional approach. However, the second power, to make a declaration as to whether an individual lacks capacity to make decisions, 'on such matters as are described in the declaration' may undermine the functional approach. The MDA believes that 'such matters' in this clause will allow the Court to declare that a person is unable to make a particular type of decision indefinitely. If this interpretation is correct, this power may allow the Court to decide that an individual is unable to make decisions on all matters relating to their finances, their medical treatment or their personal welfare, without regard to the particular circumstances surrounding each decision within these categories.

5d.10 The MDA would suggest that the second power should be downgraded, so that the Court of Protection may only state that an individual currently lacks capacity in relation to a particular decision, but may also express an opinion that an individual regularly experiences significant difficulty in making decisions on a particular issue and that this incapacity is therefore likely to continue. A declaration of this nature would then allow carers to claim protection under the revised General Authority proposed by the MDA, which would now require a carer to present evidence that an independent assessment of capacity had been carried out for the person in their care. A declaration from the Court of Protection would be the highest level of evidence necessary for carers to claim protection under the General Authority, and would be appropriate where a person's capacity was contested or regularly fluctuated.

5d.11 The draft Bill sets out two sets of powers that can grant a substitute decision-maker the right to make decisions for an individual across one or more categories. The first type of powers, Lasting Powers of Attorney (LPA), relate to people who wish to plan for future incapacity (see LPA section of MDA response). For these powers, it is clearly necessary for the Donor of an LPA to have capacity at the time the LPA is made. Currently, the Bill deals with this in Schedule 1, 2, (e), which requires a person of 'prescribed description' (similar to requirements around passport applications) to certify that a person has capacity. This requirement appears to contravene the presumption of capacity in clause 3 of the Bill, as the onus should be to demonstrate that an individual who wishes to make an LPA does not have capacity if any doubt exists. The MDA suggests that Schedule 1, clause 2, subsection (e) should be deleted and replaced with a requirement for a person of prescribed description to sign a statement that, in their opinion, the intended Donor of an LPA has understood the nature and purpose of the LPA. This would adhere to the functional approach to assessing capacity, as the person of prescribed description is only asked to assess the person's capacity in relation to a particular decision (the making of an LPA) at the material time.

5d.12 The second set of powers relates to individuals who are born with impaired capacity, or who have lost capacity without making an LPA. In these cases, the Court of Protection may appoint a Deputy to manage their personal welfare (including healthcare) or property and affairs, or may make a single order to resolve any dispute on a particular decision (clauses 16-20; clause 38). While the MDA broadly supports the principle of Court-appointed Deputies (see section of response on Deputies), we believe that Deputies should only be appointed when the court is satisfied that an individual regularly experiences significant difficulties in making a particular type of decision. This should require a body of expert evidence, potentially including assessments from individuals representing different professional groups. The burden of proof should be higher for Deputies than for a single order of the Court, because as an ongoing power the appointment of a Deputy contravenes the functional approach to assessing capacity. However, a similar duty should apply to single orders of the Court, where a pure functional approach to assessing capacity will be possible.

5d.13 The Bill is silent on which professional groups would be eligible to make an assessment or pronounce on an individual's capacity, for example in providing evidence before a declaration by the Court of Protection. This is particularly important as Ministers and officials rightly wish to minimise bureaucracy in the implementation of the draft Bill, and do not proposed any formal certification of incapacity as applies to medical treatment in the Scottish Act. Given this, the MDA would emphasise the importance of a holistic approach to determining capacity, with equal weight given to perspectives stemming from a social as from a medical model. Individual organisations within the MDA can produce a range of evidence that demonstrates a low level of awareness amongst medical practitioners of particular conditions, disabilities and disorders that may impair an individual's capacity.

5d.14 In addition, the draft Bill currently lacks any accessible mechanisms by which an individual may challenge a formal or informal assessment of capacity made about them. Although an individual assessed as lacking capacity can make an application to the Court of Protection to challenge any declaration made by the Court on the basis of this assessment (40, 1, a), the Bill does not explain how Ministers envisage that a person who may have a significant mental disorder can be supported to make such an application. This is another reason why the MDA believes that any individual assessed as lacking capacity who becomes the subject of the formal powers set out in the draft Bill should have the right to access independent advocacy.

5.e Omissions from the Bill - Public Law Protection for Those at Risk

The MDA is disappointed that the Government has decided not to proceed with this issue as part of its review on mental capacity, as proposed in the consultation paper Who Decides?. We believe that the current situation is unacceptable, and the new legislation and in particular the General Authority will make the need for public law protection still more urgent. We feel that the only way to enable older people, people with a learning disability or mental health problems to receive the most appropriate help when abused is through public law protection. For example, many people with a severe learning disability or older people are unable to care for themselves or are liable to a significant risk of exploitation because of an inability to perceive or assert their rights and interests. There is a need to replace relevant sections of existing legislation such as the National Assistance Act 1948 that are inadequate and ineffective in respect of protecting people from exploitation and neglect.

5e.1 The MDA believes that social services should have the duty to investigate cases of neglect or abuse where there is evidence of significant harm or exploitation. This power would allow the local authority to review existing community care arrangements. The MDA believes that social services should be the lead agency for investigation of abuse but that social services departments should be responsible for co-ordinating responses from other agencies within a prescribed timescale.

5e.2 There is a need to maintain a balance the risk against an individual and respect for an individual's autonomy. Once it has been established that a person has the capacity to refuse the support of the local authority, that choice should be respected.

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