Bill of no rights

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


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

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

⁶ Draft Mental Incapacity Bill, clause 3