Joint Committee on the Draft Mental Incapacity Bill First Report

3 Chapter 3: Is the Bill necessary?

24. The evidence we have received has highlighted the widespread support for the introduction of a Bill dealing with issues related to mental incapacity. Most of our witnesses acknowledged the benefit of having a bill which would provide a comprehensive statutory framework for assisting those lacking capacity to make decisions for themselves wherever possible and would allow for decisions to be taken properly on their behalf and in their best interests when they lack that capacity. The many criticisms we have received have focused on the content of the draft Bill rather than its objectives.

25. We recognise that it is no easy task to design a legal framework enabling satisfactory decisions to be made in situations ranging from temporary incapacity, fluctuating capacity to permanent incapacity and covering everything from everyday necessities to major life-changing actions.

26. We accept that particular difficulties may be involved in trying to establish the wishes of those whose learning disability or lack of communications skills may conceal their ability to make decisions.

27. We also appreciate that all decisions, however minor and routine, affect people in their daily lives and that small decisions often have a disproportionate effect on the morale and quality of life of those who are disadvantaged or vulnerable.

28. Against this background, we have reviewed evidence as indicated in this Report which demonstrates:

  • the inadequacies of the present common law;
  • the need to promote awareness and good practice in dealing with those lacking capacity;
  • the Government's duty to fulfil human rights obligations towards those lacking capacity;
  • the Government's commitment to promote non-discrimination; and
  • the need to achieve a better balance between autonomy and protection for those who are unable to make decisions.

29. We acknowledge the limitations of prescriptive legislation in addressing these problems. We believe that this Bill must be enabling as well as protective. But it is not just about making legal changes. It is about the need to change deep- seated attitudes and ways of thinking. In this context, perception is often more important than reality and it is vital to find language which will set the right tone and invoke the desired response whilst meeting legal requirements.

30. We concur with the widely-held view that a new Bill is needed to provide a comprehensive statutory framework for assisting those lacking capacity to make decisions for themselves wherever possible and for proper decisions to be made by others on their behalf where that is not possible. Even so, legislation can only go so far. It must be accompanied by changes in attitude which recognise the rights of those lacking capacity and the need to instil respect and good practice in dealing with them. The Bill must aim to preserve a satisfactory balance between enablement and protection.

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