Joint Committee on the Draft Mental Incapacity Bill Memoranda


4. MDA Commentary Draft Mental Incapacity Bill

Clauses 1-5 - Key Principles

4.1 Approach to Capacity

The MDA supports the Government's proposals to create a more coherent approach to mental capacity and is supportive of the new test of capacity, the presumption against lack of capacity and the need for the minimal intervention in people's lives.

4.1.1 A functional approach to capacity will mean that incapacity will be considered in relation to a particular decision or set of decisions, rather than based on a diagnosis of an individual's condition. It is also necessary to take account of the particular needs and values of people from different minority ethnic communities or faith groups.

4.1.2 The Bill should state that religious and cultural factors should be taken into account when making decisions on capacity to consent. Capacity is seldom entirely present or entirely absent. The MDA believes that the intention behind legislation should be to maximise each individual's capacity for decision-making. The emphasis should be on how decisions are made, how the consequences are communicated and how the facts can be broken down to aid decision-making.

4.1.3 Given that the emphasis in the Bill should be on maximising decision-making, the MDA recommends that the presumption against lack of capacity should be set out in clause 1 of the Bill. The Bill should also be named the Mental Capacity rather than the Mental Incapacity Bill.

4.2 Definition of Capacity

The definition of capacity in the draft Mental Incapacity Bill drops the diagnostic threshold that was set out in the Law Commission's definition of capacity, namely a 'disability or disorder of the mind or brain…which results in the disturbance of mental functioning.' The MDA supports this approach. This is because we had reservations about the potential for this new legislation to adopt the definitions set out in the Mental Health Act, particular because 'mental disorder' might wrongly be equated with the criteria for compulsion. In addition, it would risk stigmatising or prejudicing people who need support with decision-making. Organisations representing people with a learning disability and older people felt that the term mental disorder would be misleading and not adequately describe their client group. Removing the diagnostic criteria will also mean that all the conditions that result in incapacity would be included within the new definition and ensure that a person will not need to have a prior diagnosis in order to have impaired capacity.

4.3 Inability to make decisions

We are concerned that by not expressly stating that clause 2 relates to the 'material time' the decision is to be made, the functional approach to capacity is watered down. We therefore think that clause 2 should include the term 'at the material time'. This would reinforce the functional approach to defining capacity and that the approach is decision-specific. It will also emphasise that giving and obtaining consent is a process and not a one-off event.

4.3.1 Clause 2, subsection (1)(d) envisages that there will be cases in which a person cannot communicate any decision. The clause implies that all forms of communication should first be considered, including sign language or any other means. We agree with this approach but we think the Bill must make supporting communication an explicit requirement. This is because an apparent lack of capacity may be, in fact, the result of communication difficulties rather than incapacity. Therefore, the MDA wants legislation to place an express duty on assessors to support a person to communicate their decision before a finding of incapacity is made. Mental capacity legislation should create an obligation on assessors to provide more information in order to empower people to make decisions that they are capable of making. Indeed, provision of information is central to the consent process. People should not be disadvantaged by lack of information or support to make their own decisions or indeed a shortage in resources that prevents this information from otherwise being made available. The parameters around the meaning of 'all practical steps' to support decision-making (clause 2, subsection 3) will need to be clearly established.

4.3.2 Health and social care professionals often need help from those in day-to-day contact with the person who can identify and sometimes meet their communication needs. In some cases, specialist staff such as speech therapists may need to be brought in to assist with verbal and non-verbal forms of communication. If at all possible, the person should be assisted to make and communicate their own decision by providing information in non-verbal ways if appropriate. In addition to clause 2, subsection (1)(d), the MDA believes that clause 2, subsection (3) should state that 'a person should not be treated as unable to make a decision or unable to communicate his decision unless all practical steps to help him to do so and to assist and support communication have been taken without success.' Moreover, it should build on the Law Commission's wording which states that 'a person should not be regarded as unable to understand information if he is able to understand a simple explanation of that information in broad terms and in simple language'.

4.3.3 The proposed Code of Practice on assessing capacity should promote a person-centred approach to decision-making, which considers how a person communicates, how a decision is made and how can the consequences best be communicated to that individual. It should also consider how a person could be involved where some of the decision-making needs to be done by others. This Code of Practice should also provide guidance on methods of assessment and how different forms of communication, including use of simple language, pictures, audiotape and communication aids, local advocacy support and advance statements, can help decision-making. In other cases, new technology can be used to make the decision and its consequences more visible. The Police Service Guide to Vulnerable Witnesses provides a good example of a person- centred approach to communication with people with learning disabilities.

4.3.4 The MDA supports the recommendation that a decision should not be regarded as invalid because it appears to be an unwise or irrational decision. We remain concerned that it might provoke a more detailed examination of whether an individual has the capacity to make a decision. Many people make unwise decisions but that should not make those decisions invalid.

4.4 Best interests

The MDA supports the best interests criteria set out in clause 4. The most important factor is the ascertainable past and present wishes and feelings of the person concerned; and the need to permit and encourage the individual to participate as fully as possible in anything done, or any decision, affecting him or her. We support the decision to extend the factors proposed by the Law Commission, to include consideration of whether there is a reasonable expectation of the person recovering capacity to make the decision in the foreseeable future. The MDA understands that it may not be practicable to consult with all family carers, particularly in cases of distant relatives who have not been involved in decision-making, as this may not be regarded as reasonable (clause 4, subsection (d)). However, there should be an expectation on professionals to make proper enquiries to identify all interested parties. Moreover, we are concerned that the views of others may not need to be sought if it is not 'appropriate' to consult them (clause 4, subsection (d)). This may lead to subjective judgements about the appropriateness of a carer to represent a person's views or to challenge the decision of professionals.

4.4.1 We are very concerned about the wording in clause 4, subsection (3)(b) which states that the duty extends to circumstances in which it is 'reasonably believed' that someone lacks capacity. This would allow some people, presumably acting under a General Authority to act, to impose their own views of what is likely to be in the incapacitated person's best interests, rather than effectively applying the best interest criteria, or to impose their views without first taking all practical steps to enable a person to make their own decision.

4.4.2 In relation to decisions made on behalf of a person without capacity, we support the Law Society's recommendation that decisions must be made in their 'best personal interests'. This emphasis would stress that priority should be given to identifying those issues most relevant to the individual, rather than to the decision-maker or other people. Without such emphasis there is a risk that the individual's own best interests will not in fact be the paramount consideration.

4.5 Clauses 6 -7 - The General Authority

The General Authority will give protection to much informal substitute decision-making that currently takes place outside any formal legal framework. This will give a legal context for all day-to-day decisions that are made, such as paying bills and giving medication. In this sense, it codifies the existing legal situation as established in case law.

4.5.1 The MDA acknowledges the need in certain situations to empower carers to take effective decisions on behalf of people with impaired capacity. The General Authority serves this purpose well, and the restrictions set out in clause 7 should prevent the worst abuses of its powers. However, the MDA is concerned that in circumstances where the interests of carers and those they care for are not aligned, the General Authority still offers too little protection for the rights of people who may have difficulty making or communicating decisions.

4.5.2 In these circumstances, the General Authority may tend to undermine the presumption of capacity. With no counterbalance or system of protection for people who may lose the ability to make their own decisions under the General Authority, this may in practice lead to a presumption of incapacity. To prevent this, the MDA believes that the General Authority should not be assumed but should instead be triggered, for instance at a case conference involving all those concerned with a person's care. At this point, all the principles of the Bill set out in clauses 2-4, not least the presumption of capacity and the need to take all practicable steps to support decision-making, should be applied. The decision that the General Authority may be applied to the individual in question should be recorded; and all those using the General Authority should be able to justify its use, if challenged or investigated.

4.5.3 The continuing need to act under the General Authority should also be reviewed as part of a person's care programme. By this means, decision-making mechanisms would be integrated into a person's overall care plan (through the care programme approach, person-centred planning or single assessment process as relevant), reducing the need for additional bureaucratic processes. However, it is important to note that adults with impaired capacity who are not in contact with services will not be able to benefit from this safeguard.

4.5.4 As it stands, the General Authority will enable people to make decisions for others if the person reasonably believes that the other person, P, lacks capacity. We agree that the General Authority should be subject to best interests (clause 6, subsection (6)) but this assumes that a person lacks capacity and that a decision needs to be taken in their best interests. The MDA argues that the General Authority to act should also expressly state that it is subject to clause 3, the presumption against lack of capacity as well as the best interest criteria in clause 4.

4.5.5 The Bill should also strengthen the expectation on carers and care workers to take all practical steps to support people to make decisions that they are capable of making, before taking decisions on their behalf. The starting point for carers and care workers should be on maximising decision-making and supported decision-making rather than making a substitute decision under a General Authority. In line with our comments in relation to the 'best interest' criteria, the current wording, 'reasonable belief', runs the risk of allowing the person acting under a General Authority to circumvent the requirement to assess capacity before making decisions on another person's behalf. The MDA therefore recommends that 'or person reasonably believes that P lacks' in clause 6, subsection (1) is removed from the Bill.

4.5.6 The MDA's concerns in relation to clause 6 highlights the need for people who have difficulties making or communicating decisions to be able to access support from independent advocates. Without the involvement of an advocate, and with no requirement for capacity to be independently assessed, the General Authority gives statutory recognition to a 'closed relationship' that will not be monitored by any third party, and may therefore be open to abuse. The General Authority was initially presented to stakeholders as a mechanism by which 'day to day' decisions could be taken by carers, without the need to resort to formal processes, so minimising bureaucracy. Yet in the draft Bill, no limitation is placed on the types of decision that can be taken under the General Authority, other than that in all the circumstances it is reasonable. The MDA is concerned that the Bill makes no distinction between a day-to-day decision taken by a parent or carer and bigger one-off decisions such as medical decisions or where a person lives, taken in the best interests of another individual who lacks capacity.

4.5.7 We therefore recommend that the Bill removes some decisions from the scope of the General Authority. The MDA believes that the Bill should make it explicit that the General Authority does not authorise a carer or professional to make all decisions on medical treatment, in particular to consent to treatment. The carers' ability to make all decisions on medical treatment should be restricted to the administration of prescribed medication and decisions about whether to provide non-prescriptive medication such as pain killers.

4.5.8 Other medical treatment decisions should be made by the appropriate health professional under the General Authority but subject to additional safeguards. The safeguards would include an obligation for the health professional to carry out an assessment which confirms that the person concerned is without capacity to consent, that it is in the best interests of the person concerned for the treatment to be carried out and that the person has the support of an advocate to assist the person to participate in the decision as fully as possible.

4.5.9 Where it is found that a patient lacks the capacity to make a decision, the health professional, in consultation with the full clinical team and the patient's family, friends and carers, must make a decision in the patient's best interests. Every effort should be made to reach a consensus between relatives, carers and health professionals. This would include a case conference bringing together all interested parties, which would ensure that all those who know the person would have the chance to speak for their interests. Where there is a dispute as to whether these interests can be properly defined, the case should be referred to another health professional that is not part of the treating team for a second opinion. In cases where a health professional's view is substantively challenged and agreement cannot be reached it may, as a matter of last resort, be necessary to refer the case to the Court of Protection. These safeguards should be made clear on the face of the Bill. This would strengthen carers' and carer workers' rights through the requirement on health professionals to consult with them before making a decision on a person's best interests.

4.5.10 The MDA also proposes that other decisions that could potentially have a significant impact on the individual or amount to a significant change in circumstances should not generally be made under a General Authority. This would cover decisions such as a change in where someone will live, including following hospital discharge, and major financial decisions. Where a person is in contact with services, these decisions should already be taken as part of their care planning process. The new legislation would simply require carers and care workers to obtain a single order from the Court of Protection to legitimately make these decisions.

4.5.11 A significant change in circumstances would need to be assessed on a case-by-case basis, but would include a change of carers, such as a move away from a residential home to supported living. We, therefore, consider that decisions about where someone lives should be subject to similar safeguards as medical treatment, including ensuring that where possible there is a case conference about the proposed change. The MDA would argue that a decision taken under the General Authority in those circumstances would not be reasonable under clause 6, subsection (1)(b). It should instead be subject to the approval of the Court of Protection if an attorney or Deputy had not been appointed. The exception to this would be if a decision had to be made urgently or in an emergency, provided the decision was made for the benefit of the person and in their personal best interests. Similarly, other important decisions, for instance around childcare, should also not generally be taken under the General Authority.

4.5.12 The universal scope of the General Authority also requires a substantial public information campaign to inform all current and future carers of their rights and responsibilities under this legislation. The MDA is concerned that the subtle checks and balances set out in part 1 of the Bill will be lost on many carers if they are not given full guidance and support. The MDA is pleased that a separate Code of Practice will be developed to offer carers guidance in this area. It is important that carers are briefed on their responsibilities and that these responsibilities should only be retained if appropriately discharged.

4.5.13 Practical examples to illustrate the concept of reasonableness might be a useful method of conveying this both to carers and people who may have difficulties making decisions for themselves. The MDA proposes a duty on the Lord Chancellor or his successor to provide all information to stakeholders on the Bill that he feels necessary, in addition to the requirement to publish Codes of Practice (clause 30). Supplementary to this, clause 30, subsection (7)(b) should be amended to that the Codes of Practice must be taken into account where relevant in court cases, particularly in the Court of Protection. As stated above, carers should be able to demonstrate to the Court or any other investigating agency that their application of the General Authority has conformed to the principles set out in the legislation. This may involve the need to keep notes of why a particular decision was taken, or what steps were taken to enhance the ability to make decisions of a person with impaired capacity.

4.5.14 The MDA supports the concept of the General Authority to act reasonably - the reasonableness relating to the person in that situation. In cases in which the act involves expenditure, it should be lawful to apply that person's money where the purchase can reasonably be held to be for the benefit of that person. This should be an additional requirement on the face of the Bill. For example, using monies in order to take someone on holiday may be of benefit for the individual but using that money to buy a car for the carer may not be viewed as delivering a direct benefit for the individual.

4.5.15 Restrictions on the General Authority

The MDA supports the proposals in clause 7 that ensure that a person will not be forced to comply with a proposed action to which he or she resists unless it is essential to prevent a substantial risk of significant harm to the person concerned. However, we believe that this power should be based on an assessment of immediate harm to justify its use. It will clarify how carers will be accountable and provide protection from abuse where the confinement is justified. We prefer the term used in the Bill 'resists' to the Law Commission's wording 'objects'. An individual may not actively object to confinement, particularly if the person has communication difficulties, but may still resist the proposed course action. The Bill should also place a requirement on local authorities to intervene in the General Authority where they do not think that it is being used in the best interest of the individual and to provide a check in cases where a person is detained in order to avert a substantial risk of significant harm to himself, wherever that person lives.

4.5.16 We agree that a General Authority should not be able to overrule a power of attorney or a decision made by a Deputy appointed by the court. However the borderline between the General Authority and the Deputy system is difficult to draw. e.g. do the informal arrangements cover all medical matters until the decision is challenged? At what point should a matter rest with the court rather than a General Authority to act?

4.5.17 The MDA is generally inclined towards reserving to the courts decisions on withdraw of medical treatment, such as in cases involving PVS, and other forms of medical treatment such as sterilisation. This should be made clear on the face of the Bill.

Clauses 8-13 - Lasting Powers of Attorney (LPAs)

4.6 LPAs - Overall recommendations

One of the major attractions of a Lasting Power of Attorney (LPA) is that it involves the Donor, whilst he or she has capacity, in nominating the person they would wish to make decisions about personal welfare and property and financial affairs. As with all the decision-making powers included in this draft Bill, the MDA seeks clarification of the parameters of the LPA remit. We would want these at least covering the same remit as that proposed for the Court of Protection and set out in clauses 17 and 18. In addition, the Court of Protection / Public Guardian should be required to investigate potential conflicts of interest when LPAs are registered.

4.6.1 The current approach to informing third parties that an application for an Enduring Power of Attorney (EPA) has been made can be administratively complex and not necessarily wholly reliable. We have some sympathy with the proposal to reduce the numbers of people who are notified, including the limiting of notifications to only the Donor and Donee(s). An important issue here, however, lies in ensuring that the Donor is not subject to any undue influence when creating the LPA. Unless a third party - i.e. someone other than the Donor and Donee(s) - is required to be notified by the Public Guardian that an application has been received, the opportunity would exist for Donee(s) to insist to the Donor that no-one else is informed of the application. The MDA feels that provision should be made for at least one other party to be notified of the application, beyond the Donor, Donee(s) and the person certificating the Donor's mental capacity. We suggest that the name(s) of this nominated party is not disclosed to the Donee(s), to further avoid issues of undue influence. Where the application is made by the Donee, we suggest that regulations set out who can and cannot be included as the third party (for example, excluding the Donee(s) partner, children or other immediate family).

4.6.2 Information and training will be needed for Donees to understand the powers that they hold, and the responsibilities placed on them. In particular, this will be needed in respect of understanding that their powers under LPA arrangements are only effective at such times as they are active. At other times, the Donor will be in control of decisions in those areas of life otherwise covered by the relevant LPA(s). The MDA welcomes this principle. Those holding LPAs should at all times be subject to the Best Interests principle, even when the Donor has capacity.

4.6.3 We agree with the proposals that a Donor can choose to give to the Donee the power to refuse consent to life-sustaining treatment, and to give or refuse consent to treatment to which an existing advance decision relates. However, we suggest that if an LPA specifies that it is to cover all health and personal welfare decisions, it should be assumed this includes these decisions and the provisions relating to advance decisions; and that the relevant application form should make this clear.

4.6.4 The MDA supports the proposals in clause 10 that the Donee(s) of an LPA will not have the power to force the Donor to comply with a proposed action to which he or she resists. However, we are concerned with the wording of the proviso, 'unless it is essential to prevent a substantial risk of significant harm to the person concerned'. As with our concerns about the General Authority, the MDA believes this should be changed to 'unless it is essential to prevent an immediate risk of significant harm to the person concerned'.

4.6.5 It will be critical for Donors to understand that, at times when they have regained capacity, they have the power to revoke a registered LPA. It will also be essential that they are supported to be able to act on this power. This is a specific area where access to advocacy will clearly be of major benefit to individuals.

4.6.6 The proposed LPA arrangements suggest a welcome flexibility in how decisions are made during times of fluctuating or reducing capacity. The MDA seeks, however, clarification on whether the intention is that those holding a personal welfare LPA cannot take decisions on health matters at times when 'P' has capacity, and whether this would also apply to other, 'personal welfare', aspects held within the LPA.

4.6.7 We would also propose the following hierarchy of decision-making

·  If a decision is within the scope of how an individual LPA (or Court-appointed Deputy) has been set up, the LPA (or Deputy) would 'outrank' the General Authority

·  If a decision is within the scope of how an individual LPA has been set up, the LPA would 'outrank' a Deputy

·  The Court may direct an LPA on decisions on which the LPA has the power to act if P lacks capacity to make those decisions; and can give the consent/authorisation to act which the LPA Donee would have to obtain from P if he had capacity to give it.

4.6.8 Fundamental to this 'hierarchy' is the understanding that it is based on the principles within the draft Bill. In particular, that these powers to act on behalf of 'P' only exist whilst the person lacks capacity. MDA believes this critical issue will require training, advice and information for all parties.

4.6.9 Capacity in the context of LPAs

The Donor must have capacity when creating the LPA. This is to be assessed by 'a person of a prescribed description' (but this person cannot be a Donee), and a certificate to that effect must accompany the application. In making the application to register the LPA, the Donor must sign to say the prescribed information has been read to him (or he has read it), and that he intends the authority conferred under the LPA to make decisions on his behalf in circumstances where he no longer has capacity.

4.6.10 The MDA is concerned that 'certification' seems to go against the principle, set out in clause 3 of the draft Bill, in which the starting point is always that capacity is assumed to exist. We make a specific recommendation on this matter in the separate section in this paper on Assessment. Our view at present is that, if any such requirement is to be established, this should apply equally to Donors and Donees - not least given that one of the 'qualifying' factors for Donees is that they have mental capacity. (See also 5d.11, pp 28 - 29)

4.6.11 Relationship to Enduring Powers of Attorney

These proposals significantly reform existing arrangements for Enduring Powers of Attorneys in respect of notifying named parties. Currently, a comparatively long list of whole blood and half blood relatives must be informed (where these exist) that an application has been made. It is those 'third parties' who are most likely to lodge an objection over the creation of particular EPAs. As noted above (4.6.1), the MDA believes that a requirement to notify at least one party outside of the LPA arrangement should be retained.

4.6.12 One of the major concerns with current Enduring Power of Attorney (EPA) arrangements lies in the numbers, it is believed, of people acting under EPAs that have not been registered. Many of those holding an EPA for another person appear not to understand that registration is necessary. It will be important for Donees to be able to produce evidence that they hold those powers as near to the material time as possible and for all parties to understand that those powers are only held once registered.

4.6.13 LPA - personal welfare

Although an LPA must be registered whilst the Donor has capacity, it is only effective in terms of personal welfare decisions when the Donor lacks capacity. For people with fluctuating conditions this will be extremely important, as it will mean that decisions about health care should not be taken when the person has the capacity to make their own decisions. It will therefore be essential that guidance and training is in place, especially for Donees of LPAs, in order that they are able to make the distinction; and for health and social care professionals to understand that the creation of a personal welfare LPA does not mean that Donees will necessarily have the authority always to make those decisions. In particular, LPA Donees will need to have sufficient understanding to be able accurately to judge when the Donor has regained capacity in respect of those particular personal welfare questions. Nonetheless, the MDA welcomes the principle that personal welfare LPAs only take effect if at the material time the person lacks capacity, as this illustrates in practical terms that a lack of capacity is not always a permanent situation.

4.6.14 A personal welfare LPA can be set up to include the power to refuse consent to life-sustaining treatment, and to give this explicit authority to the Donee. We support this proposal. With respect to advance decisions, a personal welfare LPA can also be set up such that the Donee can give or refuse consent to the treatment to which an existing advance decision relates. We also agree with this proposal, but suggest that if an LPA specifies that it is to cover all health and personal welfare decisions, it should be assumed this includes these decisions and the provisions relating to advance decisions, and that the relevant application forms make this clear.

4.6.15 LPA - property and financial affairs

The registration of a property and financial affairs LPA would create a situation where the Donee can act as an 'ordinary' power of attorney even when the Donor still has capacity; but, unlike existing arrangements, it will also continue after the person has lost capacity. This suggests that this proposed LPA would mirror both the existing ordinary Powers of Attorney (which tend to relate to a specified, one-off financial event) and those for Enduring Powers of Attorney, whereby once registered a Donee has ongoing authority over the person's money irrespective of whether or not their capacity fluctuates. It will be important here for Donors to understand that, at times when they have regained capacity, they have the power to revoke an LPA and could choose to do so in respect of financial matters. It will also be essential that they are supported to be able to act on this power.

4.6.16 Banks and other financial institutions may find it easier to know that, once a financial affairs LPA has been registered, they will be dealing consistently with the Donee(s) rather than dealing with the Donor some of the time and the rest of the time with the Donee(s) - especially as it is unlikely they will have sufficient expertise to be able to ascertain whether or not a Donor has capacity at the material time. This has been the arrangement with regards to EPAs for many years, and does not appear to have caused significant problems. Nonetheless it is not consistent with the overall notion of incapacity as a situation that fluctuates for some people.

4.6.17 The MDA suggests that further consideration be given as to how Donors might regain control over their finances in practical terms during times of capacity other than by revoking the relevant LPA. Further advice may be needed to banks and other financial institutions if it is possible that they may deal with the Donor of an LPA that is registered for financial affairs at times when the Donor has capacity, and with the Donee(s) at other times. Support to Donors to supervise Donee(s) during times of capacity will also be essential. The MDA believes this would also form an important part of advocacy support.

4.7 Clauses 14-22 - Powers of the Court / Court-Appointed Deputies

Court Appointed Deputies will replace the current receivership system. As with LPAs, Deputies will be able to take decisions, only if so appointed by the Court of Protection, 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. Additionally, if a trust corporation is appointed Deputy, it can only be in respect of property and affairs. The court will be able to appoint more than one Deputy to act on behalf of an individual who lacks capacity.

4.7.1 The MDA welcomes the extension of powers for Deputies to include personal welfare and property and affairs. We acknowledge the need for this set-up should the person be born with impaired capacity, or lose their capacity without having made previous arrangements to nominate an LPA. However, there need to be full checks and balances to ensure that decisions made by Deputies on behalf of people who lack capacity are in their best interests. Whilst we welcome the restrictions on Deputies set out in clause 20, we feel that they does not go far enough in safeguarding the rights of people who lack the capacity.

4.7.2 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 moment when we believe a right to access independent advocacy should be triggered. This also highlights the need for people who have difficulties making or communicating decisions to be able to access support from independent advocates. Without the involvement of an independent third party, assumptions may be inadvertently made about the capacity of that person.

4.7.3 Restrictions on Deputies

We welcome the restrictions laid out in clause 20, particularly those relating to settling property or the execution of a will. However, we feel that there needs to be further restrictions. The court should be given the power to investigate any conflict of interest, whether professional or personal, before an application for a Deputy is approved. This will ensure that the applicant for Deputy is a suitable candidate. Furthermore, the court needs to be given powers to make checks about the competency or capacity of the applicant to carry their functions as a Deputy - e.g. the Court may decide that a person who is already a Deputy for a number of people may be incapable of taking on additional Deputy responsibilities.

4.7.4 These checks should include liaising with the Criminal Records Bureau (CRB) and local authorities to ensure that the applicant is not on any statutory lists or registers that preclude people from working with vulnerable adults. Finally, and unlike the MDA's 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.

4.8 Clauses 23-29, clause 32 - Advance Decisions

The MDA strongly supports the inclusion of Advance Directives to refuse treatment in the draft Bill. This will clarify an existing area of common case law, and will enable an individual's expressed views, regarding withholding or withdrawing of treatment, to be adhered to even when the person concerned has lost capacity. We support the tests of validity and applicability that are detailed in clause 25 and feel they will provide considerable safeguards to prevent advance directives being abused. We particularly welcome the inclusion of clause 32, which will make it a criminal offence, punishable by imprisonment or a fine, to conceal or destroy another person's advance decision as it will validate and strengthen the power and influence of the advance decision.

4.8.1 The MDA welcomes the regulations that require both those acting under the powers of the General Authority and the 'Welfare' Lasting Power of Attorney to be subject to clauses 23 to 25 (advance decisions to refuse treatment). The MDA, however, feels it is an omission for the Bill not to require court appointed Deputies to also be subject to clauses 23 to 25. This is particularly important because currently Deputies will be given the power to give or refuse consent to the carrying out or continuation of a treatment. This will provide a legal loophole that could be exploited in order to override a person's advance decision.

4.9 Clauses 34-46 - The Court of Protection

The MDA supports the principle of a unified Court of Protection with High Court status, and the provisions for it to have a regional presence. The MDA welcomes the provision for the Court to make single orders on important decisions. However, the MDA would be concerned if the costs of such orders were so high that it would act as a disincentive. In terms of other costs that might be incurred when making an application with the Court of Protection, the MDA seeks an assurance that people who lack the capacity can apply for legal aid to cover their legal costs. All Court of Protection judges and staff will also need to have detailed training to fully understand the impact of this new legislation. Resources will also need to be found to secure training for Court judges and employees on the needs of the various client groups they will be dealing with.

4.9.1 The Court of Protection must be fully accessible to both carers and adults with impaired capacity. The accessibility of the Court, particularly in relation to single orders, will be particularly important if the Committee accepts the MDA recommendation that certain decisions should be removed from the remit of the General Authority. Finally, the MDA would like to seek an assurance that the Court of Protection procedures will apply the Speaking up for Justice measures, which were set up by the Youth and Justice Criminal Act 1999, when necessary.

4.10 Clauses 47-49 - The Public Guardian / Lord Chancellor's Visitors

The MDA has a general concern that the implementation of any future Mental Incapacity Act will not be effectively monitored. Our recommendation is that the Public Guardian / Lord Chancellor's Visitors randomly inspect a given percentage of carers holding formal substitute decision-making powers each year, and then report on the findings of these inspections to Parliament. Allied to our proposed duty on the Lord Chancellor to provide information as requested, this would increase the likelihood that the principles of the legislation would be respected in practice by carers and care workers.


 
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