3 Chapter 3: Is the Bill necessary?
24. The evidence we have received has highlighted
the widespread support for the introduction of a Bill dealing
with issues related to mental incapacity. Most of our witnesses
acknowledged the benefit of having a bill which would provide
a comprehensive statutory framework for assisting those lacking
capacity to make decisions for themselves wherever possible and
would allow for decisions to be taken properly on their behalf
and in their best interests when they lack that capacity. The
many criticisms we have received have focused on the content of
the draft Bill rather than its objectives.
25. We recognise that it is no easy task to design
a legal framework enabling satisfactory decisions to be made in
situations ranging from temporary incapacity, fluctuating capacity
to permanent incapacity and covering everything from everyday
necessities to major life-changing actions.
26. We accept that particular difficulties may be
involved in trying to establish the wishes of those whose learning
disability or lack of communications skills may conceal their
ability to make decisions.
27. We also appreciate that all decisions, however
minor and routine, affect people in their daily lives and that
small decisions often have a disproportionate effect on the morale
and quality of life of those who are disadvantaged or vulnerable.
28. Against this background, we have reviewed evidence
as indicated in this Report which demonstrates:
- the inadequacies of the present
- the need to promote awareness and good practice
in dealing with those lacking capacity;
- the Government's duty to fulfil human rights
obligations towards those lacking capacity;
- the Government's commitment to promote non-discrimination;
- the need to achieve a better balance between
autonomy and protection for those who are unable to make decisions.
29. We acknowledge the limitations of prescriptive
legislation in addressing these problems. We believe that this
Bill must be enabling as well as protective. But it is not just
about making legal changes. It is about the need to change deep-
seated attitudes and ways of thinking. In this context, perception
is often more important than reality and it is vital to find language
which will set the right tone and invoke the desired response
whilst meeting legal requirements.
30. We concur with the widely-held view that a
new Bill is needed to provide a comprehensive statutory framework
for assisting those lacking capacity to make decisions for themselves
wherever possible and for proper decisions to be made by others
on their behalf where that is not possible. Even so, legislation
can only go so far. It must be accompanied by changes in attitude
which recognise the rights of those lacking capacity and the need
to instil respect and good practice in dealing with them. The
Bill must aim to preserve a satisfactory balance between enablement