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 last week.
The revised 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
The bill gives legal protection to carers and professionals who
make daily decisions while caring for someone who cannot give
Anyone who fears they will lose mental capacity in the future will
be able to delegate a named individual to take health, welfare and
financial decisions for them, under a new lasting power of
A new criminal offence of neglect or ill treatment of a person
lacking mental capacity, with a maximum penalty of five years
imprisonment, will also be created under the bill.
Constitutional affairs minister Lord Filkin said the bill set out a
“clear framework of ethical principles” for working with 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 added.
The bill also 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 it wanted to see the right to advocacy extended to all people
with impaired mental capacity to provide extra safeguards against
their “abuse and exploitation” when making key decisions.
Ministers promised more detail in draft codes of practice when the
bill reached committee stage.
Mental Capacity Bill is available from www.dca.gov.uk/menincap/legis.htm