Joint Committee On Human Rights Fifteenth Report

4. Draft Mental Incapacity Bill

Date Presented

Reference Number


Date Consultation ends

Previous Reports

27 June 2003

Cm 5859

Constitutional Affairs


4.1 The Draft Mental Incapacity Bill was published in June 2003 in two volumes.[34] It would put in place a new regime for respecting decisions made by people who have capacity to make them, and for making decisions on behalf of those who do not have capacity. The Draft Bill also makes provision for giving effect to decisions about their future treatment, made by people who had capacity to decide the matters at the time when they made the decisions but who have lost that capacity when the time comes to decide whether to administer treatment.

4.2 The Draft Bill is the latest stage in a long process of consideration of, and consultation on, the best way to respect the autonomy of people who have some degree of mental incapacity while ensuring that they are protected against exploitation. The process began with a Law Commission Report on Mental Incapacity in 1995.[35] This was followed by two consultation papers issued by the Government: Who Decides? Making Decisions on behalf of Mentally Incapacitated Adults (December 1997); and Making Decisions (October 1999). The Draft Bill is intended to be a vehicle for further consultation. It will be considered by a Joint Committee of both Houses of Parliament, which is expected to report later this year.

4.3 Here, we report our views of the human rights implications of the Bill.

The provisions of the Draft Bill

4.4 Part 1 of the Draft Bill deals with decision-making on behalf of people of the age of 16 or over who lack capacity at a given time. Clause 2 introduces a presumption against lack of capacity. Clause 3 provides that any decision made for or on behalf of the person must be in the person's best interests, taking account of his previously expressed views and the views of his carers and other people who represent him or are likely to know his wishes. Clause 6 provides carers and others with general authority to take action, but this is subject to duties of respect for autonomous decisions made by the person about his or her future treatment when he had capacity to make such decisions. Clauses 8 to 13 and Schedules 1 and 2 would replace the procedure for making an "enduring power of attorney" (that is, a power of attorney that can continue to empower the donee to act on behalf of the donor even after the donor becomes incapable of managing his or her own affairs) with a "lasting power of attorney", and Schedule 3 would make provision for the operation after the Bill comes into force of enduring powers of attorney made under the previous law.

4.5 Clauses 23 to 29 give statutory recognition and regulation, for the first time, to advance decisions about future medical treatment taken by people who later become incapable. The general principle is that an advance decision is to be given effect, subject to a number of caveats to ensure the reliability and applicability of the advance decision in particular circumstances, and to protect people who act in good faith in ignorance of the decision or wrongly but reasonably believing themselves bound by an advance decision which for some reason is inapplicable.

4.6 Part 2 of the Draft Bill establishes the Court of Protection on a new statutory basis, together with an official known as the Public Guardian. Their combined role is to be to safeguard the interests of people who become incapable.

4.7 These provisions engage a wide range of rights, including the right to respect for private life, the right to property, and the right to be free of degrading treatment. In our view, however, the safeguards built into the Draft Bill are sufficient to ensure that there is no significant risk of the implementation of the Draft Bill leading to an incompatibility with any of them.

34   Draft Mental Incapacity Bill, Cm. 5859-I, and Making Decisions (Commentary and Explanatory Notes), Cm. 5859-II (London: TSO, 2003). Back

35   Law Com. No 231. Back

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