1. Summary MDA Response to the Draft Mental
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.
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
1.7 The MDA principles for reform
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
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.
who have difficulty making decisions should be supported to make
their own decisions rather than having decision-making taken out
of their hands.
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