3. MDA Response to Specific Committee
3.1 Was the consultation process preceding the
publication of the draft Bill adequate and effective?
Yes. As noted above, the
proposals set out in the Bill have been the subject of extensive
consultation for 14 years. However, the MDA has a particular concern
relating to the General Authority (clauses 6 and 7), which during
the consultation process was presented as a mechanism for carers
to take day-to-day decisions on behalf of a person who lacks capacity.
The General Authority as presented in the Bill is far broader
and the MDA has several suggestions as to additional safeguards
to protect the rights of people with impaired capacity from abuse
under the General Authority. See pages 8-12 of this response for
the MDA commentary on the General Authority.
3.2 Are the objectives of the draft Bill clear
In parts. The draft Bill
is clearly intended to put in place a legal framework to allow
decisions to be taken for people who lack capacity. Only in clause
2, subsection (3) does the Bill refer to the need for supported
decision-making. The MDA is concerned that the emphasis of the
draft Bill is about making decisions on behalf of people who lack
capacity rather than maximising decision-making abilities as set
out in clause 3 of the Bill. This misplaced emphasis is reflected
in the current title, which the MDA wishes to see changed to the
Mental Capacity Bill to reflect and reinforce the presumption
3.3 Does the draft Bill meet these objectives
In parts. In general terms,
the mechanisms set out by the Bill meet the objective of allowing
people to plan for future incapacity - the major exception to
this being the omission of advance statements. The objective of
giving carers the right to have a say in decisions made about
a person they care for is also met effectively (clause 4). The
General Authority and the various formal mechanisms will allow
carers and care workers to operate within a comprehensive legal
framework. However, our major concern lies with people born with
impaired capacity and those who lose capacity without making provisions
for this. We feel that this group will not in practice be fully
empowered by the Bill to be involved in decisions taken about
them or to maximise their ability to make their own decisions.
3.4 Might lessons be learned from similar legislation
already implemented in Scotland or elsewhere?
Yes. Section 1, clause
2 from the Adults with Incapacity (Scotland) Act 2000 would strengthen
the protection for adults with impaired capacity in the initial
clauses of the English Bill:
"There shall be no intervention in the
affairs of an adult unless the person responsible for authorising
or affecting the intervention is satisfied that the intervention
will benefit the adult and that such benefit cannot reasonably
be achieved without the intervention". Please see Appendix
6.3: pp 36 - 39, for a detailed MDA commentary on similar legislation
in other countries
3.5 Are there relevant issues not covered by the
draft Bill which it should have addressed?
The MDA believes that the following issues should
have been addressed by the Bill:
Statements - see Section 5a: pp 18 - 19.
- see Section 5b: pp 20 - 24.
- see Section 5c: pp 25 - 26.
- see Section 5d: pp 27 - 29.
Law Protection for Those at Risk - see Section 5e: p30.
3.6 In what other ways might the draft Bill be
The MDA key recommendations for additions and amendments
to the Bill are given are summarised in Section 2: pp 3 - 4. All
recommendations are in bold in the text that follows.