Mental Incapacity: Draft Bill (Hansard, 27 June 2003)

§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)

The Government are today publishing as CM 5859 a draft Bill on mental incapacity, which will be subject to pre-legislative scrutiny by a Joint Committee of both Houses. This draft Bill follows on from our 1999 policy statement,Making Decisions, and the Law Commission's recommendations in 1995 for a statutory framework for decision-making for adults who lack capacity. The Government have consulted widely on this issue and will continue to do so, and the Joint Committee will undoubtedly also seek views from interested parties.

The draft Bill proposes new safeguards to protect some of society's most vulnerable people who are unable to make their own decisions. It also contains proposals to enable people who want to plan for possible incapacity to give a carer, relative or friend authority to act in day-to-day decision-making on financial, welfare and healthcare matters for them. And it sets out how we would expect carers and others to approach decision-making with and for people who lack capacity.

This draft Bill is important in explaining how we might better meet the needs and safeguard the rights of vulnerable groups in society who suffer from mental incapacity. Our aim is better to protect all adults who have suffered impaired capacity from a young age, those who lose capacity perhaps through an injury or illness, those who have periods of incapacity and those who suffer from dementia in later life. Every effort would be made to help people make decisions themselves or contribute to decisions affecting them.

With around 6 million carers looking after those who lack capacity, and given that over 2 million adults lack mental capacity to some degree, this is a sensitive subject of interest to very many people. The draft Bill would ensure that the person who lacked capacity was always at the heart of the decision making process.

The draft Bill sets out a new definition of capacity that focuses on whether individuals are able to make decisions for themselves at the time when these decisions need to be made. For example, a different level of mental capacity will be needed for a decision to buy a house than for a decision to go out for the day. It works from an assumption that someone has capacity to make a decision unless it is shown otherwise. The Bill requires that all decisions taken on behalf of someone must be made in that person's best interests and sets out a new checklist of "best interests" factors, to guide decision-makers.

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The draft Bill also proposes a number of new decision-making mechanisms that will either allow individuals to plan for a possible future loss of mental capacity or, where this is not possible, will ensure that decisions which need to be made on their behalf are taken by the most appropriate people with the benefit of stringent safeguards. These mechanisms will cover all areas of decision-making, including healthcare and personal welfare, rather than just finance as at present; and there will be new judicial and administrative bodies.

The Government look forward to hearing the recommendations of the Joint Committee on the draft legislation and to further discussion with all those with an interest in what this Bill would mean for people and how it could best be implemented. We are concerned to listen to what people think about this draft Bill and to see what the scrutiny process reveals. We want to make sure that our proposals will genuinely bring about benefits and that they will work in practice.

The draft Bill, together, with a commentary and Explanatory Notes, has been published as a Command Paper and will also be available via the website for the Department for Constitutional Affairs. Copies of all the material have been placed in the Libraries of both Houses.