Clause 1: Decision-making capacity
62. Clause 1 of the Bill sets out the concept of
decision-making capacity. This is central to the draft Bill since
the powers enshrined in it are triggered by a person's incapacity.
The submissions we received all supported the general principle
of respect for autonomy that underpins this Bill.
63. We recognise that in the case of health care
decisions the Courts have determined that it is for adults to
decide for themselves whether or not to have medical treatment.
For such decisions to be valid the person has to be fully informed
about the decision in question, has to have the capacity to make
that decision for him/herself, and has to have made the decision
64. We note that the only exception in current law
to the principle that a competent person has a right to make such
decisions for him/herself is in the case of treatment for a mental
disorder where the wishes of a competent person could, under specific
circumstances, still be over-ruled under the terms of the Mental
Health Act, 1983. In all other situations a person's 'decision-making
capacity' is the pivotal issue that determines whether his/her
decision must be respected or not. The same principle of autonomy
also applies to decisions outside that of health care.
65. The draft Bill states that the decision-making
capacity of an individual must be presumed until demonstrated
to the contrary and that capacity is both 'decision specific'
and 'time' specific. The majority of the evidence we heard on
this matter endorsed these principles. This 'functional' approach
to capacity implies that a person may be capable of making one
decision but not another (perhaps more complex) one, or may be
capable of making a particular decision at one point in time but
not at another. This approach to capacity has implications throughout
the whole Bill, especially under the General Authority and Lasting
Powers of Attorney (LPA).
66. We agree with the definition of capacity and
the additional clauses under Clause 1 of the draft Bill. We support
the principle of presumption of capacity which underpins the draft
Bill. We note the functional approach adopted by the draft bill
when allied to Best Interests is intended to provide protection
to those lacking capacity. In this context, we believe that every
effort should be made in both the Bill and in the Codes of Practice
to ensure that this Bill is seen as enabling rather than restricting.
67. The only cautionary word in relation to the functional
approach came from the Master of the Court of Protection, who
drew our attention to problems that may be caused if the definition
in the Bill refers only to specific issue capacity and makes no
mention of more general incapacity. He gave examples of the potential
for people with on-going incapacity to make a series of judgments
or decisions that may have disastrous consequences.
Under the existing law, a person who is deemed to lack capacity
to manage and administer his/her property and affairs may come
under the jurisdiction of the Court of Protection.
The purpose of the Court's jurisdiction "is to take out of
the hands of that individual his or her decision-making function
in relation to property and affairs."
For example, if a receiver has been given authority by the Court
to take over the handling of the person's property and financial
affairs, the person cannot arrange to sell any property or purchase
any goods independently of the receiver, whether or not s/he has
capacity to do so. This recognition of more 'general incapacity'
is intended to protect the person's interests. We recommend
that the current clause 3 in the draft Bill before us becomes
either clause 2 of any new draft, if our recommendations as to
the inclusion of the general principle is accepted; or if not,
then the current clause 3 should be clause 1 of any new draft
Bill. This is because it better reflects the positive nature of
the Bill's purpose and will increase confidence in the operation
of this legislation.
68. We see the need for recognising the issue
of 'general incapacity' in the draft Bill in a way that will not
undermine the primacy of the functional approach and have recommended
accordingly. We endorse the criteria of capacity set out
in Clause 2 of the draft Bill for assessing whether a person is
unable to make a decision and therefore lacks capacity. But we
recommend that consideration be given to recognising the issue
of 'general incapacity' in the draft Bill in a way that will not
undermine the primacy of the functional approach.
69. The draft Bill states in clause 1(1) that 'a
person lacks capacity in relation to a matter if at the material
time he is unable to make a decision for himself in relation to
the matter in question because of an impairment of or a disturbance
in the functioning of the mind or brain. In 1(2) it states that
it does not matter whether the impairment or disturbance is permanent
or temporary. In clauses 2(1) (a) to (d) the Bill sets out the
conditions that need to be satisfied to determine that a person
is unable to make a decision for himself. Clauses 2 (2 to 5) sets
out certain other provisos that must be considered.
70. We recommend that the Codes of Practice should
state clearly that all relevant parties must use appropriate strategies
to maximise the chance that persons will have the capacity to
make decisions. This might include using specific communication
strategies, providing information in more accessible form, or
treating an underlying mental disorder to enable a person to regain
71. We received no evidence critical of the basic
criteria for determining incapacity. There was broad support for
the concept that evidence of impairment in mental functioning
had to be accompanied by evidence of incapacity. We endorse
the functional approach to the determination of incapacity and
the need to demonstrate 'an impairment of or a disturbance in
the functioning of the mind or brain in asserting whether a person's
capacity is temporary or permanent. We do not see the need to
distinguish in the Bill between the temporary or potentially permanent
nature of incapacity.
72. Our witnesses generally accepted that, as stated
in clause 2(2), people may make decisions seen by others as unwise
but that in itself should not determine incapacity. People should
be allowed to take risks. But some witnesses expressed concern
about the apparently capable person who repeatedly made unwise
decisions, particularly where such decisions might lead to neglect
Others pointed out that apparently capable but vulnerable
people were be easily susceptible to undue influence.
The importance of taking 'all practical steps to help a person
make a decision' was also emphasised.
73. The Making Decisions
Alliance argued that capacity was rarely entirely present or entirely
absent and they were concerned that insufficient time or effort
might be spent seeking alternative ways of imparting information
or communicating with people who might then have capacity.
They emphasised that decision-making should be seen as part of
a process and that interventions, such as support with communication
and the provision of accessible information, were essential.
With respect to clause 1(2) the Law Society in their evidence
drew a distinction between those disorders that might lead to
temporary or more permanent incapacity.
74. We heard evidence
from user organisations representing people with learning disabilities
that the powers in the draft Bill might be used to restrict their
freedoms and opportunities against the principles laid out in
the Government White Paper 'Valuing People'. They feared that
incapacity would all too readily be assumed, enabling a family
member or carer to over-rule those lacking capacity.
75. Values into Action
argued that a cursory and unchallenged determination of incapacity
would too readily lead into the use of the General Authority.
They stressed that people with learning disabilities could invariably
contribute to the decision-making process providing time and support
was available to them.
76. We recommend that the Codes of Practice should
set out clearly the need for evidence on both ' impairment of
or disturbance in mental functioning' and of lack of capacity,
as defined in the draft Bill, and the appropriate means of determining
that evidence in the best interests of the person concerned so
that the criteria against which an appeal might be judged are
77. We recommend that the Codes of Practice should
make clear that those acting under the General Authority or an
LPA must appreciate the concept of capacity/incapacity and be
fully aware of the responsibilities thus placed on them when carrying
out or assisting decision-making on behalf of any person who is
considered incapacitated. While it would be unreasonable to expect
all those acting under the General Authority to have the necessary
knowledge to determine that person's capacity to make any given
decision, it reasonable to expect them to take appropriate advice
and have appropriate people to assist them where necessary. The
Codes of Practice must set out a framework on these matters which
is readily understandable to lay persons.
78. We considered carefully the dilemma created
when a person with apparent capacity was making repeatedly unwise
decisions that put him/her at risk or resulted in preventable
suffering or disadvantage. We recognise that the possibility of
over-riding such decisions would be seen as unacceptable to many
user groups. Nevertheless, we suggest that such a situation might
trigger the need for a formal assessment of capacity and recommend
that the Codes of Practice should include guidance on:
- whether reasonable doubt
about capacity and the potentially serious consequences of not
intervening indicated the need for an appropriate second opinion;
- circumstances in which the statutory authorities
should be responsible for providing a level of support as a safeguard
against abuse; and
- where there was genuine uncertainty as to
capacity and an urgent decision was required to prevent suffering
or to save life, the benefit of doubt would be exercised to act
in that person's best interests in relation to any assessment