The provisions of the Draft Bill
4.4 Part 1 of the Draft Bill deals with decision-making on behalf
of people of the age of 16 or over who lack capacity at a given
time. Clause 2 introduces a presumption against lack of capacity.
Clause 3 provides that any decision made for or on behalf of the
person must be in the person's best interests, taking account
of his previously expressed views and the views of his carers
and other people who represent him or are likely to know his wishes.
Clause 6 provides carers and others with general authority to
take action, but this is subject to duties of respect for autonomous
decisions made by the person about his or her future treatment
when he had capacity to make such decisions. Clauses 8 to 13 and
Schedules 1 and 2 would replace the procedure for making an "enduring
power of attorney" (that is, a power of attorney that can
continue to empower the donee to act on behalf of the donor even
after the donor becomes incapable of managing his or her own affairs)
with a "lasting power of attorney", and Schedule 3 would
make provision for the operation after the Bill comes into force
of enduring powers of attorney made under the previous law.
4.5 Clauses 23 to 29 give statutory recognition and regulation,
for the first time, to advance decisions about future medical
treatment taken by people who later become incapable. The general
principle is that an advance decision is to be given effect, subject
to a number of caveats to ensure the reliability and applicability
of the advance decision in particular circumstances, and to protect
people who act in good faith in ignorance of the decision or wrongly
but reasonably believing themselves bound by an advance decision
which for some reason is inapplicable.
4.6 Part 2 of the Draft Bill establishes the Court of Protection
on a new statutory basis, together with an official known as the
Public Guardian. Their combined role is to be to safeguard the
interests of people who become incapable.
4.7 These provisions engage a wide
range of rights, including the right to respect for private life,
the right to property, and the right to be free of degrading treatment.
In our view, however, the safeguards built into the Draft Bill
are sufficient to ensure that there is no significant risk of
the implementation of the Draft Bill leading to an incompatibility
with any of them.