Government plans “living wills” to help sufferers of mental incapacity

Powers enabling people to make “living wills” that set
out their wishes should they lose the mental capacity to make
decisions were set out in a bill on Friday, writes
Craig Kenny

The Mental Capacity Bill also proposes a new Court of Protection to
resolve disputes about what is in the best interests of a person
who cannot give consent.

But campaigners warned that the bill would be
‘toothless’ without better access to independent
advocates. These will be available only to a person without a carer
or family to speak for them, and be limited to major decisions
about medical procedures and change of residence.

The bill gives legal protection to carers and professionals who
make daily decisions while caring for someone who cannot consent.
Anyone who fears they will lose mental capacity in the future will
be able to delegate a named individual to take health and welfare,
as well as financial decisions for them, under a new lasting power
of attorney.

The bill also creates a new criminal offence of neglect or ill
treatment of a person lacking mental capacity, with a maximum
penalty of five years imprisonment.

The constitutional affairs minister Lord Filkin said that the bill
set out a ‘clear framework of ethical principles’ for
handling people with impaired mental capacity.

For instance, living wills could be challenged in court if they
were no longer ‘relevant or applicable’ due to advances
in medical science, he said.

Relatives could also mount a challenge in the Court of Protection
if doctors wished to stop a treatment they considered
‘intrusive and burdensome’ to a patient with a poor
quality of life.

But in some cases, doctors would be able to go against the wishes
of carers or relatives if these were clearly not in the best
interests of the patient, he said.

Lord Filkin stressed that those most affected by the legislation
had been consulted. “Ten to 15 years ago people would have
thought it impossible that people with learning disabilities could
have entered into a policy debate – but they did,” he

The bill goes some way to closing a legal gap created by the
Bournewood case, in which a patient was detained in a psychiatric
hospital against his paid carers’ wishes.

But the Making Decisions Alliance, a coalition of 39 charities,
said they wanted to see the right to advocacy extended to all
people with impaired mental capacity, to give extra safeguards
against their “abuse and exploitation” when making key

Co-chair Richard Kramer said: “Advocacy can play a critical
role in assisting people to make and communicate decisions and to
help enforce their rights.”

The Alliance cited the case of a young woman with Downs Syndrome
who was helped by an advocate to decide which of her separated
parents she would live with.

A spokesperson for the Alzheimer’s Society added: “When
people with learning disabilities move residence, it tends to be
quite planned, but for people with dementia the process comes at a
crisis point.

“On the rare occasions when advocacy is provided for people
with dementia it really helps, and is cheaper than going to a

Ministers promised more detail in draft codes of practice once the
bill reaches committee stage.

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