Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence


42.Memorandum from the Department for Constitutional Affairs (MIB 1223)

  The purpose of this document is to provide a broad outline of the general principles and considerations that will influence the content of the practice codes and guidance. Future consultation with stakeholders will examine these and will inform the final Code of Practice. The information given is based on the position in October 2003.

1.  GENERAL PRINCIPLES

Broad principles on which code of practice is based which people should follow. Examples given in all cases

    —  How lack of capacity relates to each decision to be taken.

    —  Temporary and permanent capacity; periods of lucidity

    —  Inability to make decisions what are the factors to be considered? What are all the "practicable steps" that should be taken? Give examples.

    —  Best interests—underlining that it is the person's best interests, not what others think these are

    —  Informal decision-making—general authority to act—to underline that this follows consideration of capacity for a particular decision; the conclusion that someone is not capable for that particular decision; and the consideration of the person's best interests and their involvement/participation in the decision-making process

    —  Formal decision-making powers—LPAs and court appointed deputies—to spell out the sorts of factors people need to consider in choosing one or more attorneys and the seriousness of the decision to appoint one; also to emphasise that the appointment of deputies would be considered only if single Court orders were not appropriate and that deputies' powers would be as limited as possible.

    —  The new Court of Protection—its role as an arbiter of last resort

    —  The new Office of the Public Guardian—what it will and will not do and how it will relate to other organisations

    —  The new criminal offences

    —  Admissibility of this code in civil and criminal proceedings and effect on court proceedings generally

    —  Duty of person to this code if acting in a professional capacity or for remuneration in relation to a person lacking capacity

2.  ASSESSING CAPACITY AND SUPPORTING PEOPLE TO MAKE THEIR OWN DECISIONS

Principles, roles, duties and responsibilities when assessing someone's capacity to make a decision including

    —  Presumption against incapacity—no preconceived ideas about someone's abilities. Burden and standard of proof (needs to be first as the overriding principle from which rest of section flow)

    —  Who can assess capacity?

    —  When do you need a formal assessment of capacity? Who might make a formal assessment and what does this involve? Give examples

    —  How does a formal assessment differ from an informal one and when can you rely on an informal assessment? Give examples

    —  What is meant by a person's inability to make a decision?—give different examples of how this may arise in everyday life

    —  Definition of "unwise decisions"—distinction between these and other decisions, for example dangerous ones, and the need to balance the risk to the incapacitated adult or to their property

    —  Taking all practicable steps to make sure the person understands the decision to be made and to help the person make or communicate a decision—e.g. using easy words, using pictures or photographs, pointing boards or other signalling tools, sign language and interpreters.

    —  Taking all practicable steps to enhance person's ability to understand or make a decision for themselves, the obligation to help someone maximise their capacity—e.g the best time and location to assess a particular individual's capacity, allowing enough time (including allowing them time to discuss with others if they wish) for the process and making the person as comfortable as possible, considering any factors that might affect someone's capacity such as depression, low self-esteem or fluctuating capacity, or if they are taking medication which may affect their ability to make decisions or process information.

    —  Role of advocacy in supporting decision making

    —  What is meant by "reasonable belief" that someone lacks capacity (either here or under the general authority)

    —  Capacity for particular transactions, e.g making a will or a lasting power of attorney, giving evidence at a trial

    —  Providing evidence for a court or for legal proceedings or a legal transaction

3.  ACTING IN A PERSON'S BEST INTERESTS

Principles, roles, duties and responsibilities when determining someone's best interests including

    —  Explain overriding importance of deciding the person's own best interests—not what others think these might be—and ensuring that decision is not affected by other factors such as convenience to others: give examples

    —  What to take into account when deciding a person's best interests—the checklist—explain what each item on checklist in Bill means: give examples, always coming back to the individual concerned:

—  Consider whether the person is likely to have capacity in the future to make the decision, for example if he or she has fluctuating capacity, and whether the decision could be postponed until a later date

—  Ascertain the person's wishes and feelings—to include, for example, religious or cultural preferences. Include formally or informally expressed views.

—  Take time to allow and encourage the person to participate, or to improve his or her ability to participate, as fully as possible in any action or any decision that will affect him or her. Consult with the person to find out his or her current views, take time to explain what is happening and what decision needs to be made as he or she may have views that could affect the decision or on what is best for them

—  As far as is practicable consult others close to the person, especially close relatives, partners or professional carers. Who should be consulted and when? Who are people "engaged in caring or interested in the welfare of P—does it include advocate? What level or scope of consultation would be required for certain decisions, e.g. serious healthcare decisions. When a range of people is consulted how will consensus be reached?

—  Consider whether the outcome of the action or decision could be achieved in any other way that would be less restrictive of his or her freedom of action—adherence to the principle of minimum intervention.

    —  Disclosing, making information available to help with ascertaining someone's best interests—issues of confidentiality

4.  GENERAL AUTHORITY TO ACT

Principles, roles, duties and responsibilities when acting under the general authority including

    —  What is the general authority? How is it defined legally and in practice? Give examples of how it may need to be used.

    —  What is the scope of the general authority? What sort of acts is it likely to cover? Give examples.

    —  Who can act under the general authority e.g. carers, health professionals and in what circumstances?

    —  What is meant by "reasonable"? What would be deemed "unreasonable"? Give examples and illustrations of what would be an unreasonable belief that someone lacks capacity.

    —  How do you know whether it is "reasonable" for a particular person to do a particular act? Give examples. What if others feel that the person has not acted reasonably?

    —  Assessing a person's capacity as part of the general authority. What is meant by a "reasonable belief" that someone lacks capacity?

    —  When can a person rely on the general authority and when do they need to obtain formal powers? Give examples of when formal powers may be needed.

    —  Give a definition of a "carer" whether informal or professional

    —  How will the general authority operate in informal/family situations? Give examples.

    —  How will the general authority be used by health professionals when making medical treatment decisions? Give examples.

    —  How will the general authority operate in a social care/welfare situation? Give examples.

    —  Position of the general authority in the decision making process and "hierarchy". How the general authority relates to lasting powers of attorney, court-appointed deputies etc.

    —  Acting in a person lacking capacity's best interests. How does the concept of best interests specifically relate to the general authority?

    —  What happens if there is a dispute or concern involving the general authority? Give examples of the kind of dispute or concern which may arise and how this could be resolved.

    —  Using the money of a person who lacks capacity to pay for expenditure incurred as part of their care.

    —  Examples of necessary goods and services

5.  RESTRICTIONS UPON THE GENERAL AUTHORITY

    —  Restrictions on what can be done under the general authority. Specifically:

    —  What would be considered a "substantial risk of significant harm"

    —  What would be allowed to avert "a substantial risk"

    —  What would be considered reasonable to prevent a serious deterioration in the person's condition or to provide "life-sustaining treatment"

    —  What would happen in an emergency situation, for example if someone required life-saving medical treatment?

    —  How does this restriction on the general authority relate to how compulsory powers operate under mental health legislation?

    —  Specific information as to how the general authority operates re healthcare decision-making e.g consent to serious healthcare decisions

    —  Liability of person acting under a general authority (e.g. potential penalties under the criminal and civil law for not acting "reasonably")

6.  ATTORNEYS ACTING UNDER A LASTING POWER OF ATTORNEY

Principles, roles, duties and responsibilities when acting under an LPA, including

    —  How can a Lasting Power of Attorney be made? When should it be made? Who can make it? Does a solicitor need to be involved? How much will it cost?

    —  Who can be an Attorney? How many attorneys can there be?

    —  What can a financial/personal welfare attorney do? Give examples

    —  What restrictions are there on what an attorney can do? Give examples

    —  What are the powers of the Court in relation to Lasting Powers of Attorney? When does the Court get involved? Give examples

    —  How can a power be revoked/dissolved? What if a person regains mental capacity?

    —  What happens in the case of a dispute e.g. between attorneys or with other interested parties

    —  What can be done about abuse or suspected abuse where a Lasting Power of Attorney exists? What can be done if an Attorney is not doing their job properly?

7.  COURT APPOINTED DEPUTIES

Principles, roles, duties and responsibilities when acting as a deputy . including

    —  Who can be appointed as a deputy?

    —  How is a deputy appointed? What is the role of the Court?

    —  How will the Court decide who should be a deputy and what should be the scope of their powers?

    —  What happens if there is a disagreement over the appointment of a deputy? How is this resolved?

    —  What does a financial/personal welfare deputy do? Give examples

    —  What responsibilities does a deputy have towards the incapacitated person? How can deputies be monitored?

    —  What can be done about unsuitable or ineffective deputies?

8.  ROLE OF THE COURT IN DECISION-MAKING

    —  Nature of the Court—where it sits, who sits in the Court

    —  How the Court will function—oral hearings and paper applications

    —  Functions of the Court—what it can and cannot do in respect of adults who lack capacity e.g. make declarations on capacity/incapacity

    —  Who can make an application to the Court? How do they do this?

    —  The need for expert evidence

    —  Rules and Practice Directions

    —  Where to find more information

9.  ADVANCE DECISIONS TO REFUSE TREATMENT

    —  What is an advance decision to refuse treatment?

    —  How can an advance decision be made? Does it have to be in writing? Who should be told about it? Where should it be kept? Who will be able to see it? When is it binding?

    —  What can an advance decision be used for? Give examples

    —  Effect on decision-making process—how it fits in with other decision-making mechanisms e.g. Lasting Powers of Attorney etc.

    —  Validity and applicability of an advance decision e.g. who can make one? Factors to take into account in considering validity and applicability. Give examples.

    —  Liability of person carrying out or continuing treatment where advance decision has been made but not taken into account

    —  Role of the Court in determining validity and applicability

    —  Offence of concealing or destroying a written advance decision

    —  Statements of wishes that do not amount to a statutory advance decision—effect on decision-making process.

10.  DECISIONS THAT CANNOT BE TAKEN UNDER THE MENTAL INCAPACITY ACT

    —  Family relationships etc

    —  Mental health matters

    —  Transplants

    —  Voting rights

    11.  ABUSE, ILL-TREATMENT AND NEGLECT, GENERAL—  What is abuse? What to look for? Give examples

    —  "Whistle-blowing"—who to and what about? What do I do if I suspect abuse etc is taking place?

    —  How will complaints/concerns be dealt with and who will deal with them?

    —  Role of Social Services/Public Guardian/the Court/the criminal law

    —  Protection of vulnerable adults—providing and disclosing personal information; confidentiality and the role of the professional

12.  ILL-TREATMENT OR WILFUL NEGLECT, CRIMINAL PROCEEDINGS

    —  Who is this offence aimed at and who is it designed to protect? What do we mean by "having the care of a person"?

    —  What does "ill-treatment" or "wilful neglect" mean?

    —  Penalties

    13.  ROLE AND DUTIES OF THE PUBLIC GUARDIAN—  Who is the Public Guardian and what are his functions?

    —  How will he discharge his functions in practice e.g. monitoring, investigations, dissemination of information, registering authority: what roles will others have?

    —  Responsibilities of the Lord Chancellor's Visitors—what is their function?

    —  How they will operate under the new decision-making framework

14.  ROLE AND DUTIES OF THE OFFICIAL SOLICITOR

    —  What is his function with regard to adults who lack capacity?

    —  When should he be involved in cases involving such adults? What is his role in the decision-making process and in helping and representing adults who lack capacity?How does he become involved?

15.  CHILDREN AND YOUNG PEOPLE UNDER 18

    —  How the Court will deal with children and young people under 18 who lack capacity

16.  RESOLVING DISPUTES

    —  Ways of resolving disputes

    —  Healthcare conciliation services

    —  Social Care conciliation services

    —  Voluntary sector mediation services

    —  The role of advocacy in mediation/conciliation

    —  Role of the Court in resolving disputes

    —  Legal help and assistance

17.  LINKS WITH MENTAL HEALTH LEGISLATION

    —  What happens when an individual needs to be treated for mental disorder under compulsory powers? How the mental health legislation operates in place of mental incapacity legislation

18.  ACCESSING PERSON LACKING CAPACITY'S HEALTH OR OTHER PERSONAL RECORDS (DATA PROTECTION AND CONFIDENTIALITY)

19.  RELATIONSHIPS WITH THE LAW OF OTHER COUNTRIES AND JURISDICTIONS (DEPENDENT UPON THE HAGUE CONVENTION PROVISIONS BEING INCLUDED IN LEGISLATION)

20.  GLOSSARY

21.  CONTACTS AND SOURCES OF FURTHER INFORMATION ON SPECIFIC ISSUES REFERRED TO IN THE CODE





 
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Prepared 28 November 2003