133.Memorandum from United Response (MIB
1. United Response is a member of the Making
Decisions Alliance. As such we have been campaigning for legislation
that would allow a person's capacity to make decisions to be considered
outside of the Mental Health Act, and welcome the draft Mental
Incapacity Bill. There are concerns that the broad definition
of "Mental Disorder" contained in the draft Mental Health
Act would mean that people with a learning disability could be
detained even if they do not have a co-existing mental health
problem. The Draft Bill could bring about a framework to provide
medical treatment to people with learning disability outside the
Mental Health Act. We have given our support to both the Alliance's
and the Law Society's Submission. We give our support for calls
for the draft legislation to be included in the Queen's Speech.
We welcome the presumption of capacity and the proposed
functional test. However, we are concerned that the title and
the focus of the Bill, on the processes involved once a person
is deemed to be lacking in capacity, do not properly reflect the
underlying presumption. We believe it should be renamed the Mental
Capacity Bill, and there should be more focus on the face
of the Bill on support for a person in the decision-making process,
ie on empowerment, advocacy and communication.
Successful implementation of the Bill will depend
largely on the resources allocated to it, ie for staff training,
(independent) advocacy and public information.
A key issue for people with learning disabilities
is that the new legislation provides that people will not be prevented
from making a decision simply because it is deemed to be unwise,
some progress in ending the infantilisation of adults with learning
Any reference to confinement/use of force in the
draft Bill must only apply where a person's immediate safety
is concerned, and must be followed up by an early assessment/care
The Bill says it puts the person with impaired capacity
at the heart of the legislation, but does not set out mechanisms
to achieve this. Without properly resourced advocacy some people
who are able to make a particular decision could be wrongly assessed
as unable to do so. In Valuing People, the Government says that
Advocacy has a crucial role to play in supporting the choices
of people with learning disabilities. The new draft Bill must
recognise and strengthen this requirement rather than cut across
on assessment of capacity;
when a major life changing decision is being taken;
when a Court deputy is being appointed; a Lasting
Power of Attorney is being setup or activated; when a single order
of the court is being made;
where there is a disputeindependent advocacy
must be available to cover instances of conflict of interest between
a person and their carer. For instance, the General Authority
makes it lawful for any person to make a decision when caring
for another person where they reasonably believe there
is a lack of capacity (Clause 6). Without the involvement of an
independent advocate, and with no requirement for capacity to
be independently assessed, the GA may by default give statutory
recognition to a "closed relationship" that will not
be monitored by any third party, and may therefore be open to
Clause 6 goes on to make it lawful for a person to
make a decision when caring for another person when "in all
the circumstances it is reasonable for the person to do
the act". Here again, access to independent advocacy may
provide an important check on the objective reasonableness
of the decision.
Moreover, effective advocacy brings with it not only
protection and empowerment for the individual, but value for money
for the Government. Achieving the decision in the best interests
of a person, with which that person is content, at the outset
might not only obviate the need to embark on a process of elimination
until this is (or may never be) achieved, but also the need of
recourse to a costly Appeals process.
4. Scope of the General Authority
The Bill makes it clear that professionals will be
able to operate under the General Authority and makes no distinction
between a decision made on best interests by a carer or by a healthcare
professional. We support MDA calls for a higher test of reasonableness
for professional carers with single orders from the Court as a
preference. More importantly, we feel that major life changing
decisions, such as medical treatment and where a person should
live, should be removed from the scope of the General Authority.
In addition to the Codes of Practice, there should
be a public information campaign to inform all individuals [people
with impaired capacity?] and carers of their rights and responsibilities.
Without this, the subtle checks and balances set out in part 1
of the Bill may not be recognised.
We would draw the Government's attention to
the fact that the draft Bill does not explain how assessment will
work in the context of this new legislation. We believe that this
must be addressed. The literal interpretation of Clause 3 would
require a continuous assessment of capacity each and every time
that person was faced with a similar decision, but this would
not be in the interests of the individual concerned, their carers
or the relevant professionals. However, it would be equally unacceptable
for the draft Bill to erode an individual's right to make their
own decisions before capacity has been accurately and independently
assessed. The importance of assessment in underpinning the work
of the draft Bill cannot be overstated, and therefore "assessment"
needs to be clearly defined, and the legal status of the Code
of Practice for the guidance of persons assessing capacity needs
to be clarified, along with any sanctions that will be applicable
if the Code is breeched or ignored.
6. Lasting Power of Attorney
Tighter controls should be placed on who can
be appointed as donees to include those convicted of fraud or
abuse of a previous LPA. In addition, consideration should be
given as to whether CRB checks are appropriate. Donees should
be fully informed of their rights and responsibilities and effectively
monitored. The position of Care Staff acting without power of
attorney (for example making financial decisions) needs to be
considered for areas of conflict of interest.
7. Court Appointed Deputies
An independent assessment of capacity to take
a particular decision should be carried out before a Deputy is
appointed. This is the key moment when a right to access to independent
advocacy should be triggered (see para 3iic). Deputies should
not always be able to give consent to the withdrawal of treatment,
rather there should be a requirement for a single order of the
Court of Protection.
8. Advance Directives/Advance Statements
The Bill should provide for instances such as
a severely disabled person who may wish to make an advance statement
setting out their express wish that all reasonable steps should
be taken to sustain their life in the event of accident or illness,
regardless of any assumptions medical professionals may make about
their quality of life.
9. The New Bodies
Court of Protection judges and staff
will need training; The Public Guardian will have a vital
role. The Bill needs to clarify what, if any, sanctions will be
available to the PG if an individual is found to be acting outside
the letter or spirit of the Bill.
10. Omissions from the Bill
We would like to suggest that the following
also be considered within the scope of the draft Bill:
Appointeeship, whereby a person can
be given responsibility by eg the Benefits Agency for handling
someone's welfare benefits because the Agency deems them incapable
of doing it themselves, should be brought within the scope of
the Bill. Appointees should be bound by the same Best Interest
principles as Deputies or donees of LPAs.
Adults at Risk, cross reference to
regulations and guidance around vulnerable adults eg No Secrets.
Participation in vital research by
people who lack capacity.