Mental Incapacity Bill (now renamed Mental Capacity Bill)
Factsheet
April 2004
Introduction
The Mental Incapacity Bill provides a statutory framework to protect vulnerable people, carers and professionals. It makes it clear who can take decisions in which situations and how they should go about this. The Bill starts from the fundamental point that a person has capacity and that all practical steps must be taken to help the person make a decision.
A draft Mental Incapacity Bill was published in June 2003 and was subject to pre-Legislative Scrutiny by a Joint Parliamentary Committee. The Committee published its report in November 2003 and the Government published its response in February 2004. A revised Mental Capacity Bill will be introduced in this parliamentary session.
Key principles
The key principles of the Bill are:
- an assumption of capacity: every adult has the right to make his/her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
- capacity is decision specific; an assessment of someone's capacity must be based on the actual decision to be taken at the time it needs to be taken - no blanket label of incapacity.
- participation in decision making: everyone should be encouraged and enabled to make his/her own decisions, or to participate as fully as possible in decision-making, by being given the help and support s/he needs to make and express a choice;
- individuals must retain the right to make what might be seen as eccentric or unwise decisions;
- all decisions must be in the person's best interests: decisions made on behalf of people without capacity should be made in their best interests, giving weight to the decision being what they themselves would have wanted; and
- decisions made on behalf of someone else should be those which are least restrictive of their basic rights and freedoms
Key facts
At some point in their lives, millions of people in the UK lose their ability to make decisions that affect their lives - either through illness, disability or injury. And some people are born with disabilities that affect their capacity to make decisions.
Up to 2 million people are affected by a lack of capacity. For example:
- Over 700,000 people in the UK currently suffer from dementia and this figure is likely to increase to about 840,000 by 2021.
- Around 145,000 adults in England have severe and profound learning disabilities and at least 1.2 million have mild to moderate disability. In Wales over 12,000 people were registered as having a learning disability in 2001.
- 10-15 people per 100,000 of the population will suffer a severe head injury each year, and there are currently an estimated 120,000 people in the UK suffering from the long-term effects of severe brain injury.
- At some point in their lives approximately 1 per cent of the UK population will suffer from schizophrenia, 1 per cent will be subject to manic depression and 5 per cent will have serious or clinical depression.
What the Bill does
The Bill enshrines in law the current best practice. It will provide a legal basis in the following ways:
- Acts in connection with care and treatment - This provides the legal basis for a person to act on behalf of an adult who lacks capacity. The Bill will clarify that a person acting under the 'general authority' does not have a new authority to intervene in the life of someone who lacks capacity, but that this protects carers from liability when they act in the best interests of a person who cannot consent. The 'general authority' will be renamed, as there have been concerns about how this might be interpreted.
- Lasting powers of attorney (LPAs) - LPAs will be established, allowing people to appoint an attorney to act on their behalf if they should lose capacity in the future. A person can choose to apply the LPA to welfare, healthcare and financial matters.
- Court appointed deputies - The Bill will create a system of court appointed deputies to replace and extend the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as determined by the court.
- Advance decisions - This will confirm the legal basis for people to make a decision to refuse treatment if they should lose capacity in the future. The Bill sets out the circumstances in which advance decisions may be followed by doctors together with safeguards that will seek to ensure that the person making it was fully informed and that it has not changed over time.
- Criminal offence - The Bill introduces a new criminal offence of neglect or ill treatment that can be used against anyone who has ill-treated or wilfully neglected a person who lacks capacity. A person found guilty of such an offence may be liable to a term of up to 5 years imprisonment.
- New Court of Protection - The Bill will establish a new court with jurisdiction to consider applications for financial decisions, serious healthcare cases (such as decisions to undertake irreversible treatments like sterilisation), which are currently dealt with by the High Court. The practical working of the court will be designed around the needs of the person lacking capacity.
- New Public Guardian - The Public Guardian will be the registering authority for LPAs and deputies. He or she will supervise deputies appointed by the court, and provide information to help the court make decisions. (S)he will register Lasting Powers of Attorney and, working together with other agencies such as the police and social services, will respond to any concerns raised about the way in which the LPA is being operated by the donee(s).
- Code of Practice - This will provide guidance on working and dealing with people who lack capacity. A draft outline of the Code will be available to Parliament at Committee stage of the Bill.
What the draft Bill is not about
- The Bill is not about euthanasia at all and this is not a legal concept. It is though and will remain unlawful to take another person's life. The Bill is also not about the legal position on withdrawal of artificial nutrition and hydration when someone is in a permanent vegetative state. These are not even specifically mentioned in the Bill.
- But for the avoidance of doubt the Bill includes a clause that nothing in it affects the law on murder, manslaughter or assisted suicide.
- The Bill is about giving people the opportunity to make an advance decision to refuse specific treatments should they lose capacity: But only if the advance decision meet stringent tests of being valid at the time and applicable to the actual circumstances. People who have capacity are able to refuse specific treatment, so the Bill is simply - with rigorous safeguards - giving the same option to people who fear they will lose capacity.
- The withdrawal of artificial nutrition and hydration (ANH) when someone is in a permanent vegetative state (PVS).
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