New powers for advocacy and living wills in revised Mental Capacity Bill.

    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

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