Joint Committee on the Draft Mental Incapacity Bill Memoranda

3.  MDA Response to Specific Committee Questions

3.1 Was the consultation process preceding the publication of the draft Bill adequate and effective?

Yes. As noted above, the proposals set out in the Bill have been the subject of extensive consultation for 14 years. However, the MDA has a particular concern relating to the General Authority (clauses 6 and 7), which during the consultation process was presented as a mechanism for carers to take day-to-day decisions on behalf of a person who lacks capacity. The General Authority as presented in the Bill is far broader and the MDA has several suggestions as to additional safeguards to protect the rights of people with impaired capacity from abuse under the General Authority. See pages 8-12 of this response for the MDA commentary on the General Authority.

3.2 Are the objectives of the draft Bill clear and appropriate?

In parts. The draft Bill is clearly intended to put in place a legal framework to allow decisions to be taken for people who lack capacity. Only in clause 2, subsection (3) does the Bill refer to the need for supported decision-making. The MDA is concerned that the emphasis of the draft Bill is about making decisions on behalf of people who lack capacity rather than maximising decision-making abilities as set out in clause 3 of the Bill. This misplaced emphasis is reflected in the current title, which the MDA wishes to see changed to the Mental Capacity Bill to reflect and reinforce the presumption of capacity.

3.3 Does the draft Bill meet these objectives adequately?

In parts. In general terms, the mechanisms set out by the Bill meet the objective of allowing people to plan for future incapacity - the major exception to this being the omission of advance statements. The objective of giving carers the right to have a say in decisions made about a person they care for is also met effectively (clause 4). The General Authority and the various formal mechanisms will allow carers and care workers to operate within a comprehensive legal framework. However, our major concern lies with people born with impaired capacity and those who lose capacity without making provisions for this. We feel that this group will not in practice be fully empowered by the Bill to be involved in decisions taken about them or to maximise their ability to make their own decisions.

3.4 Might lessons be learned from similar legislation already implemented in Scotland or elsewhere?

Yes. Section 1, clause 2 from the Adults with Incapacity (Scotland) Act 2000 would strengthen the protection for adults with impaired capacity in the initial clauses of the English Bill:

  "There shall be no intervention in the affairs of an adult unless the person responsible for authorising or affecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention". Please see Appendix 6.3: pp 36 - 39, for a detailed MDA commentary on similar legislation in other countries

3.5 Are there relevant issues not covered by the draft Bill which it should have addressed?

The MDA believes that the following issues should have been addressed by the Bill:

·  Advance Statements - see Section 5a: pp 18 - 19.

·  Advocacy - see Section 5b: pp 20 - 24.

·  Appointeeship - see Section 5c: pp 25 - 26.

·  Assessment - see Section 5d: pp 27 - 29.

·  Public Law Protection for Those at Risk - see Section 5e: p30.

3.6 In what other ways might the draft Bill be improved?

The MDA key recommendations for additions and amendments to the Bill are given are summarised in Section 2: pp 3 - 4. All recommendations are in bold in the text that follows.

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