Debate on draft Mental Incapacity Bill

We asked if the proposals contained in the new draft
Mental Incapacity Bill will take control of their lives away from
people with learning difficulties?

To read a recent Community Care article on the

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These are the comments we received:

The ‘Community Care’ article focuses on
clients with learning difficulties. The clients I deal with are
older people often with Alzheimers Disease or other forms of mental
frailty associated with old age, which can be expected to get

It seems to me that many of these clients have lost control of
their lives already, not by the law but by the progress of the
disease, which removes the abilities they once had. Other people’s
ideas then fill the vacuum.

How that happens is fairly random at present, and the issue of
‘best interests’ can be hotly disputed. Will the legislation help
in these diificult care management situations? I like the idea of a
checklist which may make decision-making a little less subjective,
at least.


The following comments suggest that some
improved draughtsmanship of this bill will be required before final

Best Interests“Any person engaged in caring
for him or interested in his welfare.”

There may be more than one, and if so, their opinions may differ
in a way that affects the issues to be determined.

Best Interests“In the case of an act done,
or a decision made, by a person other than the court, there is
sufficient compliance … if the person reasonably believes that
what he does or decides is in the best interests of the person

This paragraph should only be effective as long as the decision
is not in conflict with any matters considered in para. 4 (2).

The general authority

There should be a stipulation here whether ‘general
authority’ includes, or not, medical and surgical

In connection with paragraph 18 in particular, there needs to be
a more explicit description of trustee’s powers. Under the
Vaccine Damage Payment Act 1979, trustees are appointed to receive
money on behalf of the damaged person. There needs to be some
explanation of how such trustees are represented in the proposed

Has the following matter been considered?

There seems not to be a specific clause, which deals with
persons who have always been non-autonomous, and who have always
lacked capacity.

Alan Challoner MA (Phil.) MChS

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