In 1995 the Law Commission published a set of recommendations in its Report, Mental incapacity. This and the Report of the House of Lords Medical Ethics Committee in 1994 formed the basis of a Green Paper ‘Who Decides? - Making Decisions on Behalf of Mentally Incapacitated Adults which was published by the then Lord Chancellor's Department (LCD) in December 1997. The paper considered the need for a more informal framework for those making day-to-day decisions on behalf of an incapacitated person. In the then Lord Chancellor's announcement to the House of Lords on 10 December 1997 he told the House:
The Department received over 4,000 responses to this Green Paper from charities working for people without capacity; local authorities; doctors; professional organisations; and those working in the law. In October 1999 a Report Making Decisions was published in the light of these responses setting out the Government's proposals ‘to reform the law in order to improve and clarify the decision-making process for those who are unable to make decisions for themselves, or who cannot communicate their decisions.'
This Bill is about how we expect all decisions to be made when someone lacks, or may lack, Mental capacity, including healthcare and personal welfare decisions (rather than just financial decisions as now).
The Bill would:
explain what we mean by ‘capacity' - concentrating on whether someone is capable of making a particular decision at the time when that decision needs to be made.
set out criteria for assessing what is in the best interests of someone who lacks capacity - for example by considering what he or she has said in the past and consulting those close to them.
introduce the concept of a ‘general authority to act' that clarifies in statute the circumstances in which decisions can be taken on behalf of others without the need for any formal authority. (This is to protect carers who regularly make decisions on behalf of others, but whose actions currently have little or no legal basis. It also protects incapacitated people by setting out restrictions.)
introduce Lasting Powers of Attorney to extend the current system for delegating decision-making powers on financial affairs to include healthcare and personal welfare decisions;
establish a new court to resolve complex issues and to appoint deputies to take decisions on behalf of people without capacity where they have not created a Lasting Power of Attorney;
create a new Office of the Public Guardian, to support the Court and to provide administrative support to ensure the new decision making process works smoothly.
Further information about what is in the Bill is available on this website.
A series of guidance leaflets was produced in May 2003 that explains the current legal position and offers guidance on how decisions should be made on financial, health and other matters. Drafts of these guidance leaflets went out for public consultation in April 2002. A summary of those responses was also published in May 2003.
In July 2001 the then Lord Chancellor announced the launch of a scheme to pilot regional Court of Protection hearings. It was hoped that holding hearings locally would benefit parties by reducing the time, cost and anxiety involved in attending court. The pilot commenced on 1st October 2001 and ran for a six month period until March 2002. The scheme proved successful, hearings continue to take place at Preston and the Department is now looking at setting up a second regional hearing centre.
Due to concerns raised with the Department about possible financial abuse of enduring powers of attorney (EPA), a working group was set up in October 2002 to review existing procedures, forms and guidance. The group met on 11 November 2002 and 29 January and 31 March 2003.
Rosie Winterton MP, the Minister responsible for this area of policy work at that time, set up a Consultative Forum comprised of members from various voluntary organisations as well as professionals in the fields of health, law and social care. She was clear that working with people who have daily practical experience of working with and caring for people with impaired Mental incapacity would enable us to make changes that met their specific needs. The first forum meeting was held in June 2002. During these meetings members have the opportunity to speak personally to the Minister of the problems and difficulties that the have encountered.
Lord Filkin
Lord Filkin CBE was appointed as Parliamentary Under-Secretary at the Department
for Constitutional Affairs on 13 June 2003, succeeding Rosie Winterton MP.
Before that, he was the Home Office Parliamentary Under-Secretary for Race
Equality, Community Policy, and European and International Policy. Prior
to his Ministerial appointment, he was in 2001 made a Lord in Waiting (Government
Whip).