Joint Committee on the Draft Mental Incapacity Bill Memoranda

MIB 951


1)  Values Into Action (VIA) has been working since 1971 to promote and support the development of good, positive policies and practices towards people with learning disabilities. We are entirely independent and promote only the interests of people with learning disabilities. We carry out our work through research and development, publications, training and conferences.

2)  VIA has a long history as a leader on decision-making issues. We have researched the theory, practice and implementation of current and potential systems of supporting people to maximise their decision-making capabilities within a legal context, and have published widely on the subject (see list of publications on page 4, one of which - Making Decisions - is enclosed).

3)  Over a number of years we have advised and liaised with officials at the Department for Constitutional Affairs, and are pleased that draft legislation has now been produced. However, we are dismayed that less than 2 months, in the height of the holiday season, was allowed for submission of written evidence to the Joint Committee. This is important legislation and every effort needs to be made to ensure that the interests and safety of the many people who will be affected by it are properly represented and protected.

4)  The present draft Mental Incapacity Bill contains a number of elements which we support. We are pleased that:

a)  the Bill recognises that people may have the capacity to make some decisions whilst they may not be able to make others (Clause 1);

b)  all practicable steps will have to be taken to help a person make a decision before they can be judged as unable to make it (Clause 2);

c)  there is a presumption against lack of capacity until and unless it is established that the person lacks capacity (Clause 3);

d)  the person must be involved in the decision as far as possible, and their views and those of others in their lives taken into account (Clause 4).

5)  However, VIA is extremely concerned about the nature and scope of the general authority as set out in Clauses 6 and 7. As currently proposed the general authority represents a potential threat to the safety, satisfaction and wellbeing of anyone at risk of being judged to lack capacity. In particular, its powers:

a)  may be exercised by anyone "when providing any form of care" (Clause 6(1)) regardless of who the individual is or the nature of their relationship with the person;

b)  may be exercised by a range of individuals acting independently with no overview or plan for the person in question;

c)  may be exercised by a single individual over a long period of time according to their own personal view of the person's needs and preferences;

d)  are not subject to any form of monitoring, review or other safeguards;

e)  are not susceptible to challenge except by appeal to the Court of Protection;

f)  cut across the provisions noted above in Clauses 1, 2, 3 and 4, in that "reasonable" belief that someone lacks capacity will effectively nullify the intentions of Clauses 1, 2 and 3, whilst "reasonable" belief that their decision is in the person's best interests will effectively nullify Clause 4.

6)  The Government's 2001 White Paper Valuing People: A New Strategy for Learning Disability in the 21st Century directs that person-centred planning be an integral part of decision-making around a person's life. Person-centred planning requires that all decisions are reached with maximum possible input from the person, and reflect what the person would really want. To achieve this where someone's decision-making capabilities are limited (perhaps extremely limited) requires the use of supported decision-making techniques (see the enclosed publication Making Decisions). It is a matter of concern that the draft Mental Incapacity Bill takes no account of either person-centred planning or supported decision-making, and sets up a separate and antithetical decision-making avenue.

7)  All people with learning disabilities are able, with support, to indicate their preferences and thereby help to determine the course of their own lives. Their right to do this is enshrined in the Human Rights Act 2000 and underlined by Valuing People. However, because these abilities and rights are not recognised by the draft Bill many people with learning disabilities will find themselves excluded from decision-making altogether. The general authority, as it now stands, will enable other people to decide for themselves that someone lacks capacity, and then to decide for themselves what that person should do throughout the course of their life, with no oversight, no regulation and no easy system of challenge. It will be up to the person who is deemed to lack capacity to make their own complaint to the Court of Protection - a highly unlikely scenario, especially given the total absence of advocacy support in the Bill.


8)  VIA believes that the draft Mental Incapacity Bill, and particularly the general authority, far from protecting vulnerable people actually substantially increases their vulnerability. We strongly recommend that the whole notion of the general authority be completely rethought before the Bill progresses farther.

9)  We further believe that the following changes to the general authority would help to reduce the potential harm to vulnerable people, including people with learning disabilities:

a)  The general authority should cover only minor decisions. Guidance should be issued on which decisions would fall within the remit of the general authority and which would need to be referred to the Court of Protection.

b)  The Bill should require records to be kept of all decisions made, including what the decision was, who it was made by, the reasons for it being made, how it will benefit the person and how the person was involved in it.

c)  Decisions under the general authority should be taken jointly by at least 2 people, one of whom should not be a member of the person's family or services.

d)  Complex or difficult decisions should require the involvement of additional people.

e)  Guidance is needed on the interpretation and prioritisation of 'best interests'.

f)  Every decision made should clearly be to the benefit of the person deemed to lack capacity.

g)  No person acting under the general authority should benefit from any decision made.

h)  The Bill needs to set out a process of decision-making which would incorporate the steps to be taken to ensure the fullest possible participation by the person deemed to lack capacity.

i)  New guidance is needed on the use of supported decision-making to ensure the fullest possible involvement of the person deemed to lack capacity.

j)  The Bill needs to state the role to be played by person-centred planning.

k)  The Bill should provide a system for the monitoring, review and challenge of decisions taken under the general authority.

l)  There needs to be a local, informal and easily-accessible Court to facilitate decision-making, mediation and appeals.

m)  Use of force and restraint under the general authority should not be lawful.

n)  The Bill should provide adequate resources for advocacy services to ensure that all people at risk of being deemed to lack capacity have access to advocacy.

10)  I have already informed the Assistant Clerk to the Joint Committee that we would welcome the opportunity to provide oral evidence. I now wish to confirm that we would very much like to discuss and explain further the points made in this paper.

Dr Jean Collins


Values Into Action            1 September 2003

VIA Publications

Bewley, C. (1998) Choice and Control: Decision-making by people with learning

  difficulties. London, VIA

Edge, J. (2001) Who's In Control? Decision-making by people with learning

  difficulties who have high support needs. London, VIA

Beamer, S. & Brookes, M. (2001) Making Decisions: Best practice and new ideas

for supporting people with high support needs to make decisions. London, VIA [enclosed with this submission]

previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 October 2003