2. Summary of MDA key recommendations
for additions and amendments to the Bill
of the Bill should be amended to the Mental Capacity Bill
to reflect the presumption of capacity enshrined in the Bill
of capacity should be moved from clause 3 to clause 1 to reflect
and promote its fundamental importance.
2.2 General Authority
Authority should be explicitly subject to the presumption of capacity
6, subsection (1) - 'or person reasonably believes that P lacks'
to be deleted
in medical treatment to be removed from the remit of the General
decisions removed from the remit of the General Authority, unless
justified by immediate necessity
General Authority should not be assumed but should instead be
triggered, for instance a case conference involving all those
concerned with a person's care
continuing need to act under the General Authority should be reviewed
as part of a person's care programme.
the Bill, restrain should always be justified only if risk of
serious harm is immediate (for example clause 7 (General Authority),
clause 10 (LPAs)).
Bill should create a duty on local authorities to intervene in
cases of suspected abuse, including abuse of the General Authority.
2.5 Lasting Powers of Attorney (LPAs)
on the parameters for LPAs is needed, comparable to that given
on the powers of Deputies in clauses 17 and 18
must be established within a clear hierarchy of decisions, in
which they should 'trump' other powers with the exception of Advance
Directives and decisions of the Court of Protection.
should be made subject to Advance Decisions.
2.7 Court of Protection
of Protection should be required to investigate potential conflicts
of interest on appointment of Deputies and on the activation of
Court of Protection should be made accessible to adults with impaired
aid and other financial assistance should be given to all such
adults to support applications to the Court.
should be a legal right to access independent advocacy when formal
powers are applied for, and a subsequent duty on the Secretary
of State to provide sufficient advocacy services to deliver this
support should be available if required when significant or life-changing
decisions are contemplated under any of the powers established
in the Bill
without other formal or informal networks of support should be
prioritised for advocacy support.
2.9 Other significant omissions
system to be regulated under the Mental Incapacity Bill, with
appointees subject to the same list of duties as other substitute
statements to have superior status to other expressions of 'wishes
should defined within the Bill.