Joint Committee on the Draft Mental Incapacity Bill First Report

6 Chapter 6: (Clauses 1-3) Decision-making capacity

Clause 1: Decision-making capacity

62. Clause 1 of the Bill sets out the concept of decision-making capacity. This is central to the draft Bill since the powers enshrined in it are triggered by a person's incapacity. The submissions we received all supported the general principle of respect for autonomy that underpins this Bill.

63. We recognise that in the case of health care decisions the Courts have determined that it is for adults to decide for themselves whether or not to have medical treatment.[48] For such decisions to be valid the person has to be fully informed about the decision in question, has to have the capacity to make that decision for him/herself, and has to have made the decision voluntarily.

64. We note that the only exception in current law to the principle that a competent person has a right to make such decisions for him/herself is in the case of treatment for a mental disorder where the wishes of a competent person could, under specific circumstances, still be over-ruled under the terms of the Mental Health Act, 1983. In all other situations a person's 'decision-making capacity' is the pivotal issue that determines whether his/her decision must be respected or not. The same principle of autonomy also applies to decisions outside that of health care.

65. The draft Bill states that the decision-making capacity of an individual must be presumed until demonstrated to the contrary and that capacity is both 'decision specific' and 'time' specific. The majority of the evidence we heard on this matter endorsed these principles. This 'functional' approach to capacity implies that a person may be capable of making one decision but not another (perhaps more complex) one, or may be capable of making a particular decision at one point in time but not at another. This approach to capacity has implications throughout the whole Bill, especially under the General Authority and Lasting Powers of Attorney (LPA).

66. We agree with the definition of capacity and the additional clauses under Clause 1 of the draft Bill. We support the principle of presumption of capacity which underpins the draft Bill. We note the functional approach adopted by the draft bill when allied to Best Interests is intended to provide protection to those lacking capacity. In this context, we believe that every effort should be made in both the Bill and in the Codes of Practice to ensure that this Bill is seen as enabling rather than restricting.

67. The only cautionary word in relation to the functional approach came from the Master of the Court of Protection, who drew our attention to problems that may be caused if the definition in the Bill refers only to specific issue capacity and makes no mention of more general incapacity. He gave examples of the potential for people with on-going incapacity to make a series of judgments or decisions that may have disastrous consequences.[49] Under the existing law, a person who is deemed to lack capacity to manage and administer his/her property and affairs may come under the jurisdiction of the Court of Protection.[50] The purpose of the Court's jurisdiction "is to take out of the hands of that individual his or her decision-making function in relation to property and affairs."[51] For example, if a receiver has been given authority by the Court to take over the handling of the person's property and financial affairs, the person cannot arrange to sell any property or purchase any goods independently of the receiver, whether or not s/he has capacity to do so. This recognition of more 'general incapacity' is intended to protect the person's interests. We recommend that the current clause 3 in the draft Bill before us becomes either clause 2 of any new draft, if our recommendations as to the inclusion of the general principle is accepted; or if not, then the current clause 3 should be clause 1 of any new draft Bill. This is because it better reflects the positive nature of the Bill's purpose and will increase confidence in the operation of this legislation.

68. We see the need for recognising the issue of 'general incapacity' in the draft Bill in a way that will not undermine the primacy of the functional approach and have recommended accordingly. We endorse the criteria of capacity set out in Clause 2 of the draft Bill for assessing whether a person is unable to make a decision and therefore lacks capacity. But we recommend that consideration be given to recognising the issue of 'general incapacity' in the draft Bill in a way that will not undermine the primacy of the functional approach.

69. The draft Bill states in clause 1(1) that 'a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter in question because of an impairment of or a disturbance in the functioning of the mind or brain. In 1(2) it states that it does not matter whether the impairment or disturbance is permanent or temporary. In clauses 2(1) (a) to (d) the Bill sets out the conditions that need to be satisfied to determine that a person is unable to make a decision for himself. Clauses 2 (2 to 5) sets out certain other provisos that must be considered.

70. We recommend that the Codes of Practice should state clearly that all relevant parties must use appropriate strategies to maximise the chance that persons will have the capacity to make decisions. This might include using specific communication strategies, providing information in more accessible form, or treating an underlying mental disorder to enable a person to regain capacity.

71. We received no evidence critical of the basic criteria for determining incapacity. There was broad support for the concept that evidence of impairment in mental functioning had to be accompanied by evidence of incapacity. We endorse the functional approach to the determination of incapacity and the need to demonstrate 'an impairment of or a disturbance in the functioning of the mind or brain in asserting whether a person's capacity is temporary or permanent. We do not see the need to distinguish in the Bill between the temporary or potentially permanent nature of incapacity.

72. Our witnesses generally accepted that, as stated in clause 2(2), people may make decisions seen by others as unwise but that in itself should not determine incapacity. People should be allowed to take risks. But some witnesses expressed concern about the apparently capable person who repeatedly made unwise decisions, particularly where such decisions might lead to neglect or suffering.[52] Others pointed out that apparently capable but vulnerable people were be easily susceptible to undue influence.[53] The importance of taking 'all practical steps to help a person make a decision' was also emphasised.[54]

73. The Making Decisions Alliance argued that capacity was rarely entirely present or entirely absent and they were concerned that insufficient time or effort might be spent seeking alternative ways of imparting information or communicating with people who might then have capacity. They emphasised that decision-making should be seen as part of a process and that interventions, such as support with communication and the provision of accessible information, were essential.[55] With respect to clause 1(2) the Law Society in their evidence drew a distinction between those disorders that might lead to temporary or more permanent incapacity.[56]

74. We heard evidence from user organisations representing people with learning disabilities that the powers in the draft Bill might be used to restrict their freedoms and opportunities against the principles laid out in the Government White Paper 'Valuing People'. They feared that incapacity would all too readily be assumed, enabling a family member or carer to over-rule those lacking capacity.[57]

75. Values into Action argued that a cursory and unchallenged determination of incapacity would too readily lead into the use of the General Authority. They stressed that people with learning disabilities could invariably contribute to the decision-making process providing time and support was available to them.[58]

76. We recommend that the Codes of Practice should set out clearly the need for evidence on both ' impairment of or disturbance in mental functioning' and of lack of capacity, as defined in the draft Bill, and the appropriate means of determining that evidence in the best interests of the person concerned so that the criteria against which an appeal might be judged are transparent.

77. We recommend that the Codes of Practice should make clear that those acting under the General Authority or an LPA must appreciate the concept of capacity/incapacity and be fully aware of the responsibilities thus placed on them when carrying out or assisting decision-making on behalf of any person who is considered incapacitated. While it would be unreasonable to expect all those acting under the General Authority to have the necessary knowledge to determine that person's capacity to make any given decision, it reasonable to expect them to take appropriate advice and have appropriate people to assist them where necessary. The Codes of Practice must set out a framework on these matters which is readily understandable to lay persons.

78. We considered carefully the dilemma created when a person with apparent capacity was making repeatedly unwise decisions that put him/her at risk or resulted in preventable suffering or disadvantage. We recognise that the possibility of over-riding such decisions would be seen as unacceptable to many user groups. Nevertheless, we suggest that such a situation might trigger the need for a formal assessment of capacity and recommend that the Codes of Practice should include guidance on:

  • whether reasonable doubt about capacity and the potentially serious consequences of not intervening indicated the need for an appropriate second opinion;
  • circumstances in which the statutory authorities should be responsible for providing a level of support as a safeguard against abuse; and
  • where there was genuine uncertainty as to capacity and an urgent decision was required to prevent suffering or to save life, the benefit of doubt would be exercised to act in that person's best interests in relation to any assessment of capacity.

48   Re: C [1991] 3 All ER 866; Re: B [2002] EWHC 429 (Fam) Back

49   Q495, Q496 (Mr Lush) Back

50   Mental Health Act 1983, s 94 Back

51   Masterman-Lister v Jewell and others [2002] EWHC 417, QB at 29 Back

52   Ev 183 MIB 1049 para 10, Q495, Q496 (Mr Lush), Q483 (Mr Dixon) Back

53   Ev 140 MIB.679, Qs506-8 (Mr Lush), Q590 (Mr Raymond),Ev 200 MIB.1210 Back

54   Ev 30 MIB 950 para 4.3.1-2, Ev 475 MIB 1057 paras 3.1.2-5 Back

55   Q93,Q101 (Ms. Willmington)  Back

56   Q557, Q558 (Mr Clements) Back

57   Ev 230 MIB.733, Q647 (Ms Aspis), Q654 (Mr MacGiven), Q658 (Mr Lee) Back

58   Ev 230 MIB.951 Back

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