Joint Committee on the Draft Mental Incapacity Bill First Report


1 Chapter 1 Background to the Draft Bill:

1. The Draft Mental Incapacity Bill[3] and accompanying Commentary and Explanatory Notes[4] were presented to Parliament on 27 June 2003 by Lord Filkin, the Parliamentary Under-Secretary of State for the newly-created Department for Constitutional Affairs.

Consultation

2. The draft Bill is the result of a very lengthy and detailed process of consultation. As long ago as 1989, the then Lord Chancellor, Lord MacKay of Clashfern, invited the Law Commission of England and Wales to carry out a comprehensive investigation of all areas of the law affecting decisions on the personal, financial and medical affairs of those who lack capacity. This was in response to concerns raised by professional bodies and voluntary organisations dealing with mental disability

3. Following five years of consultation and deliberation, the Law Commission produced its final report and recommendations for Law Reform in March 1995.[5] The Commission recommended that "there should be a single comprehensive piece of legislation to make new provision for people who lack mental capacity".[6]

4. The Commission's recommendations for legislation included a new statutory definition of what it meant to be "without capacity" to make a particular decision. This was coupled with statutory criteria defining the "best interests" of the person concerned as the basis on which decisions might be made by others on behalf of a person lacking capacity.

5. The report also proposed the concept of "General Authority" to clarify where action might lawfully be taken on behalf of a person lacking capacity without needing formal procedures or intervention by the court. This would provide legal authorisation for anyone to "do anything for the personal welfare or healthcare of a person who is, or is reasonably believed to be, without capacity in relation to the matter in question if it is in all the circumstances reasonable for it to be done by the person who does it, and it is in the best interests of that person".[7]

6. The Commission also recommended that persons aged 18 or over who had the necessary capacity to make decisions could express advance refusals of medical, surgical, dental or other procedure which might be available to them in future when they lacked the capacity to express that decision.[8] Other recommendations of the Law Commission included:

  • Provisions for the supervision of particular forms of invasive or irreversible medical treatment and permitting, in certain circumstances and under strict safe-guards, non-therapeutic medical research, involving persons lacking capacity;[9]
  • A new form of Power of Attorney to be called a "Continuing Power of Attorney" to provide for designated persons (known as "donees") to be authorised to make and implement decisions about personal welfare, health care and financial affairs in the best interests of those lacking capacity;[10]
  • An integrated statutory jurisdiction for making personal welfare, health care and financial decisions on behalf of those lacking capacity and for resolving disputes through a new Court of Protection;[11]
  • Public Law Protection for vulnerable people at risk by giving social services departments a duty to investigate possible harm or serious exploitation of vulnerable persons and to intervene where necessary.[12]

7. In response to the Law Commission Report, the (then) Lord Chancellor's Department published a Green Paper "Who Decides" in December 1997[13] and, after a further consultation, a policy statement entitled 'Making Decisions' in October 1999.[14] This set out[15] the Government's commitment to bring forward new legislation "when Parliamentary time allows" to include:

  • A presumption against lack of capacity;
  • A functional approach to determining whether or not a person has capacity to make a particular decision;
  • A new statutory definition of incapacity;
  • A commitment that all practical steps must be taken to enable a person without capacity to communicate their decisions;
  • Statutory guidance on how the best interests of person who lacks capacity should be determined;
  • A General Authority to react reasonably for "day-to-day decision making on behalf of those without capacity", but subject to certain restrictions;
  • New provisions on continuing Powers of Attorney enabling the delegation of decision making powers on finance, health care and personal welfare by persons over the age of 18;
  • A new single Court of Protection to deal with all the areas of decision making for adults without capacity;
  • A commitment to ensure that appropriate arrangements should be put in place to provide a practical and effective system to monitor health care, welfare and financial management of those lacking capacity.

8. Following the publication of the Green Paper, the (then) Lord Chancellor's Department established the Mental Incapacity Consultative Forum. This was designed to work with stakeholder organisations, to develop solutions to problems which exist under the current law and to explore proposals for new legislation. The Department also produced a series of six booklets giving guidance on the existing law respectively for legal practitioners, social care professionals, health care professionals, family and friends, people wishing to prepare for possible future incapacity and those with learning difficulties.[16] Meetings and consultation seminars with those representative groups, organised by the Department, to discuss the scope for law reform eventually led to publication of the draft Bill.

Scotland

9. In parallel with the work of the Law Commission of England and Wales, the Scottish Law Commission carried out a similar consultative exercise in the early 1990's which culminated in its own final report published in 1995. Following further consultation and a position paper "Making the Right Moves" published in 1999[17], the Adults with Incapacity (Scotland) Act 2000[18] became one of the first statutes to be enacted by the Scottish Parliament. The Scottish Act has been implemented in stages and the Scottish Executive has commissioned surveys to find out how the Act is working in practice and what impact it is having on those without capacity and their carers.

10. Many of the provisions of the Adults with Incapacity (Scotland) Act 2000 mirror those proposed for England and Wales in the Draft Mental Incapacity Bill. But differences between the respective jurisdictions and the different public bodies responsible for legislation are reflected in some important differences in approach. The main differences are highlighted where appropriate in the relevant sections of this Report.


3   Cm 5859-1 Back

4   Cm.5859-II Back

5   Law Commission Report 231, Mental Incapacity, HMSO 28 February 1995 Back

6   Ibid Summary paragraph 1.2 Back

7   Ibid Summary 1.6 Back

8   Ibid 1.14 Back

9   Ibid 1.21-23 Back

10   Ibid 1.27 Back

11   Ibid 1.34-1.41 Back

12   Ibid 1.45 Back

13   CM 3803 Back

14   CM 4465 Back

15   Ibid, Chapters 1-3 Back

16   http://www.lcd.gov.uk/family/mi/index.htm Back

17   SE/1999/24, ISBN 0 10 888002 8 Back

18   2000 asp 4 Back


 
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Prepared 28 November 2003