The draft Mental Incapacity Bill for England and Wales could be at
risk of falling by the wayside. This is the fear of the Making
Decisions Alliance, which brings together 27 charities and
represents millions of people who have difficulty making or
The current law on decision-making in England and Wales is patchy,
piecemeal and is more concerned with property than people. While it
is possible to give another person the right to spend your money,
carers and relatives do not have any right to have a say in the
health and welfare decisions made on behalf of the person they care
for. And this leaves some of the most vulnerable adults in our
society open to abuse.
The draft bill proposes to extend this system so that powers of
attorney cover health and welfare decisions as well as financial
ones. Even more importantly, it would put in law that an individual
has a right to make decisions, unless it can be shown that they are
unable to do so. People in Scotland have had this right since 2000.
This makes it a vital step in the move towards full civil rights
for disabled people, and others who have difficulty making or
communicating decisions. But the alliance wants to see the draft
bill improved further so that people have a right to any support
they need to make decisions, as well as a right to an advocate to
help them challenge decisions made on their behalf.
But some pro-life commentators have suggested that the bill will
legalise euthanasia “by the back door”. The press coverage of this
is in danger of obscuring just how much a comprehensive legal
framework on decision-making is needed. It could also drown out
concerns from activists that changes need to be made to the bill to
stop it placing too much power in the hands of carers.
The advance directives proposed in the bill will allow people with
capacity to state which treatments they would want to refuse should
they lose capacity in the future. But they cannot authorise a
doctor to do anything which is illegal or which a person with
capacity could not request a doctor to do.
There is already intense speculation as to what legislation will
feature in the Queen’s Speech later this month. Given the demand on
parliamentary time, many important pieces of legislation will miss
out on a slot. The alliance strongly believes that after 14 years
of delay, the Mental Incapacity Bill should not be one of them.
Steve Broach is co-chairperson of the Making Decisions