The draft Mental Incapacity Bill, published last week has been a
long time coming. The Law Commission first began consulting on the
issue in 1989 and there’s no doubt the proposed legislation plugs a
yawning gap in the statute book.
The bill has vast implications and could affect every decision and
action a person may need to take in life. And it will apply to a
wide range of individuals including those with dementia, people
with learning difficulties and anyone with a serious mental illness
such as major depression or schizophrenia.
Lord Filkin and his team at the Department for Constitutional
Affairs maintain they have come up with a clear, simple and
informal system that will allow people to retain maximum
But user groups are not so sure. Organisations representing people
with learning difficulties were among the first to voice their
concern. They are not convinced the proposed new legislation
strikes the right balance. They fear it gives too much power to
those caring for people with learning difficulties who, often with
the best motives, will start acting on their behalf rather than
enabling them to make choices for themselves.
The proposed bill imposes exacting criteria for ascertaining
whether someone is capable of giving legal consent. Many people
with learning difficulties will fall at the first hurdle even
though they may be perfectly able to make decisions for themselves
if given enough support.
It is crucial that when the bill comes under the scrutiny of a
joint committee of MPs and lords that sufficient safeguards are put
in place to ensure that decisions on people’s mental capacity are
made in a transparent way.
The bill also needs to make clear that vulnerable people should be
listened to. The government could make a start itself by listening
to user groups who feel their concerns are being brushed aside in
the rush to get this long-awaited legislation through.