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The legal position around decision-making for people who find it hard to make, or hard to communicate, their own decisions has long been recognised as uncertain and confusing. In order to rectify this, the new draft Mental Incapacity Bill "aims to provide a clear, simple, informal system that will ensure people can maintain a maximum level of autonomy."¹ Yet while the proposed system may prove to be clear, simple and informal, it will not - at least for people with learning difficulties - ensure "a maximum level of autonomy".


The bill focuses entirely on providing a legal framework in which other people are enabled legally to make decisions for the person thought to lack capacity. It could have looked at developing alternative structures of decision-making, including supported decision-making, as the basis for a new legal framework designed to enable everyone to maximise their decision making capabilities. It has not done this. It has settled instead for placing a legal framework around common, existing practices of substitute decision-making. It has made lawful what currently happens unlawfully.

Under the current law, decisions for people who lack capacity can only legally be made by the High Court (or the Court of Protection for financial matters), or under the common law principle of necessity. Very few decisions go to court, and the majority are taken without a clear view of whether they are covered by the principle of necessity. There is, for example, very often no legal basis for decisions about whether someone should go to a day centre, where they should live or how they should spend their money.

The draft bill creates a "general authority" which would permit any person "when providing any form of care for another person"² to make such decisions on behalf of that person. It is intended that a range of people will use the general authority to make decisions for someone they regard as lacking capacity. This could mean, for example, that a neighbour might decide that someone should not cross the road unaccompanied; day centre staff might decide they should eat a cooked meal for lunch; the dentist might decide they need a tooth filled; and their parent might decide they should move into a residential home.

Under present legislation there would be doubt as to the lawfulness of decisions such as these. Once this bill becomes law, however, there will be no doubt provided that the person who is making decisions for someone else "reasonably" believes that that person lacks capacity "in relation to the matter in question"² and also provided that "in all the circumstances it is reasonable for the person [ie the decision-maker] to do the act".

There are several concerns here. Firstly, it is up to the person making decisions under the general authority to decide for themselves that the individual lacks the capacity to make their own decision. In other words, there is no formal assessment of capacity, simply the view of a person who stands in a relation of care to the individual. People already in positions of power vis-a-vis a person with learning difficulties, perhaps a social worker, care home manager or a relative for example, will have their power automatically strengthened and legalised.

Secondly, the bill does not set out a process by which any actions under the general authority can be monitored, reviewed or challenged. The only recourse would be to go to the new Court of Protection which alone will have the authority to "trump" a decision made under the general authority. Who would provide the support that a person with learning difficulties would need in order to take their decision maker to court? There is no recognition in the bill of the need for advocacy provision.

Thirdly, the bill's focus on substitute decision-making is supposedly balanced by its requirement that all acts done or decisions made on behalf of another person must be in that person's best interests.3 The best interests principle is already established in the common law but the draft bill makes unfounded assumptions about the reliability and impartiality of "best interests" decision-making. Different people will have different views of what constitutes an individual's best interests. Research has shown that many decisions will actually be influenced by the impact of the decision on the decision maker, as much as on the person for whom the decision is made.⁴

Moreover, what is perceived to be in someone's best interests may well not be what that person prefers. People often choose to take risks rather than do what others perceive to be in their "best interests". Taking risks is what makes life interesting, challenging and fun and risks do, after all, often pay dividends. But "best interests" decisions on behalf of others are far more likely to follow safe and predictable patterns - the course that parents would typically choose for their children. Nevertheless, the bill calmly asserts that there will be "sufficient compliance [with the law]É if the person reasonably believes that what he does or decides is in the best interests of the person concerned".3

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The bill does place restrictions on the general authority. It states that it does not authorise anyone "to use, or threaten to use, force to secure the doing of an act which [the person] resists, or to restrict [the person]'s liberty of movement".⁵ Yet even so the person's freedom of action is not safeguarded, because the bill adds the proviso: "unless the person [acting under the general authority] reasonably believes that it is necessary to do so to avert a substantial risk of significant harm to [the person]".⁵

So anyone taking upon themselves the power conferred by a general authority can also physically prevent someone from doing something if, in their view, it carries potential risk of harm. This could easily be used to prevent people with learning difficulties from doing such potentially dangerous things as spending time alone with their boyfriend or girlfriend or moving into supported independent living.

People with learning difficulties already have a hard struggle to have their voices heard and their opinions taken heed of. This bill will make that struggle very much harder, because it enables and protects not them, but the very people who have traditionally exercised control over them. The so-called safeguards - the principles and checklists - within the bill will have little moderating effect on others' control because the bill does not provide for any system of monitoring or review of decisions taken on others' behalf.

In current law and in the draft bill everyone is presumed to have capacity until proven otherwise, and this process is supposed to be repeated for each decision at the time it needs to be made.⁶ How often does this happen now for people with learning difficulties? How often is it likely to happen in the future?

The bill also states that everyone should be permitted and encouraged to participate in decisions affecting them, and their wishes and feelings should be taken into consideration.⁴ How likely is it that the views of people with learning difficulties will be seriously taken into account? Even the provision that an "unwise" decision should not be taken as evidence that somebody lacks capacity will not protect people with learning difficulties, because experience tells us that lack of wisdom in a decision will be attributed to the person's learning difficulties rather than to idiosyncratic choice.

It is the nature of people that everyone needs some support when making decisions, and the nature of learning difficulties that additional support is required. This bill makes no allowance for that additional support, and strips away from people who need more support the right to make their own decisions. Moreover, nowhere in the bill is there any mention of advocacy. How can a bill which proposes legislation that will give people the right to make decisions for vulnerable others, and which claims to be aimed at protecting those vulnerable others, not have a place in it for advocacy? Advocacy is the first line of defence for vulnerable people against oppression and domination by more powerful others. Its omission from this bill is a grave error. 

Jean Collins is director of learning difficulties campaigners Values Into Action

References

¹ Lord Filkin, Draft Mental Incapacity Bill, Commentary and Explanatory Notes, page 5, see www.legalpractitioner.co.uk/meninc.pdf

² Draft Mental Incapacity Bill, clause 6

³ Draft Mental Incapacity Bill, clause 4

⁴ C Bewley, Money Matters, Values into Action, 1997

⁵ Draft Mental Incapacity Bill, clause 7

⁶ Draft Mental Incapacity Bill, clause 3