Joint Committee on the Draft Mental Incapacity Bill Written Evidence

133.Memorandum from United Response (MIB 1111)

  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.

  2.   General


    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 disabilities.


    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 plan.

  3. Advocacy


    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 it.


    Advocacy should be available at the very least at the following stages:


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 dispute—independent 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 abuse.

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.

  5.   Assessment

  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.

    —  Data protection.

September 2003

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