Draft proposals for new mental incapacity laws published

The draft Mental Incapacity Bill was published by the department
for constitutional affairs. The bill deals with decision-making
both for those who have lost or will lose capacity at some point in
their lives as well as those who have lacked capacity since birth.
The bill provides recourse to a court with power to deal with all
personal welfare (including health care) and financial decisions on
behalf of adults lacking capacity.

The bill defines incapacity by using a functional test
concentrating on a particular decision to be made at a particular
time (rather than seeking to establish general incapacity). Once
incapacity is established the concept of best interests is
enshrined in the bill, building on the common law developments in
this area while offering “more precise guidance”. A new
scheme for powers of attorney is introduced. This is called lasting
powers of attorney and extends to welfare and health decisions once
a person has lost capacity, rather than simply business and
financial affairs covered presently by enduring powers of
attorney.

There is to be a statutory duty to act in a person’s best
interests where they lack capacity. There is a checklist of factors
to which a decision-maker must have regard. These include the
likelihood of the person regaining capacity in the future, the
views of the person even though they lack capacity, and views
expressed before capacity was lost, the views of others including
carers, and consideration of the least restrictive option.

The bill provides a general authority to act in the best
interests of an adult lacking capacity, which would make lawful
many day-to-day decisions that have to made on behalf of a person
(dressing the person, giving injections, taking on a trip are all
examples used in the notes to the bill). The notes say that
“it aims to clarify the principle of necessity that currently
exists at common law”. A test of reasonableness is imposed on
a person so acting, both in considering whether the adult lacks
capacity and in deciding whether to act.  

However, where an action would involve the use of force or
restriction of liberty, the general authority is limited to
situations where there is a “substantial risk of significant
harm” to the person lacking capacity. Additionally, the
general authority may be overridden by a person holding a valid
lasting power of attorney which specifies what should happen in
particular circumstances (for example, in relation to
treatment).

The striking feature of the new proposed lasting power of
attorney (‘LPA’) is the ability of a person to delegate health and
welfare decision to a donee of the power in the event that the
donor loses capacity. However, where the decision involves the
giving or withholding of life-sustaining treatment, the LPA must
specifically provide the donee with authority to act in these
situations. The bill also makes provision for persons to make
advance decisions to refuse treatment if they lose capacity in the
future.

The bill provides a new court of protection with powers to make
declarations as to whether a person lacks capacity, what is in a
person’s best interest, whether a proposed action is lawful,
and also to appoint a deputy to make decisions about a
person’s welfare and property. The court would also have
jurisdiction to rule on the validity and meaning of LPAs and
advance decisions.

Codes of practice on many of the areas outlined above will be
issued if and when the bill becomes law, and regard must be had to
them in carrying out any functions set out in the bill. 

Comment: The bill is long-awaited and is
largely welcomed by lawyers and mental health charities. The courts
have been uneasy about relying on their “inherent
jurisdiction” to deal with best interests declarations.
Social care and health care professionals have been uncertain about
the extent of their powers when dealing on a day to day basis with
adults who lack capacity. The present enduring power of attorney is
outdated, and fails to deal with the increased demand for people to
manage their welfare and health concerns in advance of losing
capacity.

The draft
Mental Incapacity Bill