87.Memorandum from Mencap (MIB 792)
Mencap welcomes the publication of the draft
Mental Incapacity Bill and is pleased to be able to respond to
this consultation process. Mencap has been campaigning on the
need for legislation in this area for more than a decade and hopes
that the draft Bill becomes legislation during the next parliamentary
session. We consulted widely with Mencap members and local staff
with interest in this area to reach our recommendations. We will
also be a holding a national consultation day for people with
a learning disability in early September. An analysis of this
response will be shared with the Scrutiny Committee.
Mencap welcomes the key principles in the Bill,
which we believe, will empower and support people with a learning
disability to make their own decisions in day to day matters.
The Bill will also clarify who has the legal right to take day
to day welfare, healthcare or financial decisions on behalf of
people who lack the capacity to make decisions independently.
However, Mencap does not feel that the Bill
currently contains sufficient mechanisms to ensure that these
principles are implemented in practice. Mencap would like to see
mechanisms in the Bill to allow people to challenge decisions
made on their behalf. This is why we are continuing to press for
the inclusion of advocacy on the face of the Bill and for additional
safeguards in relation to the General Authority.
Key principles in the draft Bill that Mencap
Enabling people to make as many of
their own choices as possible for as long as possible and to be
supported to make their own decisions;
Protecting people who cannot make
their own decisions;
Enabling supporters of people who
cannot make decisions to take part in decision-making;
Providing guidelines for professionals
working with people who do not have sufficient capacity to make
their own decisions.
However, we have a number of concerns about
the draft Bill. These are the following:
There is a serious gap in the Bill. It does
not state that advocacy is needed to support people to make as
many of their decisions as possible. We are concerned that this
gap may seriously affect some people with a learning disability.
Mencap believes that independent advocacy should
have a key role in ensuring that:
People are not wrongly assessed as
incapable of making a particular decision;
Once accurately assessed, people
with impaired capacity are able to participate fully in decisions
taken on their behalf, and are supported to develop their capacity
to participate over time.
Although the Disabled Person's Act 1986 gives
disabled people a qualified right to access independent advocacy,
it has never been implemented. Valuing People, the learning disability
White Paper, provides some funding to develop independent advocacy.
This funding has been sufficient only to expand the geographical
reach of advocacy organisations, not to ensure that all people
with a learning disability can access an advocate. Evidence suggests
that funding has been cut for some advocacy services.
Mencap acknowledges the need to empower supporters
to take effective decisions on behalf of people with impaired
capacity and to feel that they are protected by law. The GA serves
this purpose well, and the restrictions set out in clause 7 should
prevent the worst abuses of its power (the supporter cannot use
or threaten to use force). However, we are concerned that there
is no mechanism in the Bill whereby people with a learning disability
can challenge decisions taken under the GA.
We are also concerned about the universal scope
of the GA. Our understanding prior to the publication of the Bill,
was that the GA would apply to informal day to day decisions made
by unpaid supporters. However, the Bill makes it clear that professionals
will also be able to operate under its authority, and the Bill
makes no distinction between a decision made by a health professional
based on best interests and a supporter making a decision in a
person's best interests. Professionals should be bound by a professional
code of conduct and they need to be subject to tighter restrictions.
In the draft Bill, there is also no limitation
placed on the types of decision that can be taken under the GA,
other than that in all the circumstances it is reasonable. It
may therefore be that in certain situations, for instance following
a car accident or if a person is about to be discharged from hospital,
consent may be given for significant health or welfare decisions
under the GA. However, important decisions such as where the person
should live should not fall under the GA. Again, access to independent
advocacy may provide an important independent check on the reasonableness
or otherwise of a decision.
Mencap supports the widening of the scope of
attorneyship from purely financial affairs to additionally cover
the full range of health and welfare decisions. This would enable
supporters who are looking after severely disabled people to apply
to become an appointed person that will look after that person's
financial, welfare and medical interests.
However, we feel that tighter controls should
be placed on those who can be appointed as donees of LPAs. At
present, an individual who is bankrupt may not be appointed. We
believe that this exclusion should be extended to those convicted
of fraud or abuse of a previous LPA. The Guardianship Office,
which is responsible for these applications, should also be linked
with the Criminal Records Bureau to ensure that the person is
not on the Vulnerable Adults List.
As with supporters operating under the GA, we
are concerned that donees holding wide-ranging powers under an
LPA should be fully informed of their rights and responsibilities.
It will also be important that the Public Guardianship Office
effectively monitors the operation of LPAs.
Court Appointed Deputies will replace the current
receivership system. As with LPAs, Deputies will be able to take
decisions, only if so appointed, across the full range of financial,
health and welfare issues. Deputies can be appointed to make decisions
on one or more strand of decision-making. We are concerned that
the Court of Protection should only appoint a Deputy when an independent
assessment of capacity to take a particular decision has been
made. Also, the appointment of a Deputy is a key stage when we
believe a right to access independent advocacy should be triggered.
Unlike our position on LPAs, we do not believe that Deputies should
always be able to give consent to the withdrawal of treatment.
Rather, we prefer a requirement for a single order of the Court
of Protection where circumstances permit.
Court of Protection
Mencap supports the principle of a unified Court
of Protection with High Court status, and the provisions for it
to have a regional presence. Court of Protection judges and staff
will need to have detailed training to fully understand the impact
of this new legislation. Other training includes disability awareness
training and training on the range of illnesses that may cause
a person to lack capacity. The provision for the Court to make
single orders on important decisions is particularly welcome.
The Public Guardian
Mencap believes that the Public Guardian will
have a vital role to play in the successful implementation of
this Bill. The Public Guardianship Office must be sufficiently
resourced to effectively monitor any abuse of the powers set out
in the Bill. Aside from two specified criminal offences (clause
31ill-treatment and neglect; clause 32concealing
or destroying an advance decision), the Bill does not clarify
what, if any, sanctions will be available to the Public Guardian
if an individual is found to be acting outside the spirit of the
Title of the Bill
Mencap is concerned about the title of this
Bill which, we believe, has negative connotations. The Bill is
more positive than its title. It is about capacity and the support
available when person may not be able to make his/her decision.
Its assumption is that you have capacity to make that certain
decision unless others prove the contrary. Therefore, it should
be mental capacity rather than mental incapacity. All the countries
that have introduced similar legislation do not use that terminology.
In Scotland, it is called, Adults with Incapacity Act 2000, in
Southern Australia, the Guardianship and Administration Act 1993,
and in Canada, the Substitute Decision Act and Advocacy Act of
Adults at riskthe Bill does
not cross-refer to regulations and guidance around vulnerable
adults, for instance No Secrets. While this relationship may be
best considered in guidance, it is important that the Bill does
not create parallel structures and mechanisms to those already
in place. Mencap also support specific recommendations in Who
Decides for Public Law Protection for People At Risk including
a duty on social services to investigate possible cases of neglect
Appointeeshipthis is where
a person can be given responsibility by the Department of Work
and Pensions for handling someone's welfare benefits (local authorities
can do the same with housing benefit) because the person is not
thought to be capable of doing it themselves. Mencap believes
that appointeeships should be brought within the scope of the
Bill, not least because the person in question is likely to be
even more vulnerable by virtue of being dependent upon benefits.
Appointees should be bound by the same best interest principles
as those operating as Deputies or donees of LPAs.
Mencap believes that the successful implementation
of this Bill will depend largely on the resources attached to
it. Aside from the need for independent advocacy outlined above,
the Bill will create a substantial training need across a range
of professional groups such as doctors, nurses and social care
professionals. Funding is needed to ensure that its powers are
used as intended. Funding is also needed to educate the public
about the new rights and procedures to ensure that they have access
to the right information.
The Government has positioned the Bill as part
of a progressive agenda, enhancing the civil and human rights
enjoyed by people who may have difficulty making or communicating
decisions. To make this vision a reality, Mencap believes that
the Government must attach sufficient resources to this legislation
to ensure that those who come under its powers have access to