§ Lord FilkinThe Mental Capacity Bill was published on Friday in the other place. The Bill is the culmination of extensive consultation and careful consideration over many years of the needs of people who lack mental capacity. It also benefits considerably from pre-legislative scrutiny by a Joint Committee. The Committee made 99 recommendations for improvements to the Bill, 88 of which the Government accepted and used to improve the Bill introduced today.
The overriding aim of the Bill is to improve the lives of vulnerable adults, their carers, families and professionals. It provides a statutory framework for decision making for people who may lack capacity, making it clear who can take decisions, in which situations and how they should go about it.
The Bill is based on clearly defined principles. Its starting point is that everyone has the right to make their own decisions and must be assumed to have the capacity to do so, unless it is proved otherwise. No one should be labelled as "incapable". Each decision should be considered individually, and everyone should be helped to make or contribute to making decisions about their life. The Bill sets out clear guidelines for and limits on other people's role in decision making.
The Bill has the potential to improve the lives of millions of people. At some point in their life, everyone is likely to be affected by mental incapacity, either personally or because of caring responsibilities. Up to two million people currently lack capacity, including, for example, over 700,000 people in the UK who suffer from dementia and 145,000 adults in England who have severe and profound learning disabilities.
People affected by a lack of capacity are not well served by the current law, which has grown up in a piecemeal way. It is difficult to plan ahead for a time when you might lose capacity, and there is no reliable framework to support carers in their decision making. The absence of a clear legal framework means that it is not always clear who can do what, or how anyone can determine where another person's best interests lie. Some people may think that they can do whatever suits them, perhaps because of a family relationship. Others may err on the side of doing too little, worrying about criticism or even prosecution for the actions that they might take.
We know that there is much good practice in making decisions on behalf of adults who lack capacity. The Bill will, over time, bring about a quiet revolution in public attitudes and practice, building on current good practice and existing statutory and common law rules. The Bill will provide greater empowerment and better protection for vulnerable people and for those who face the difficult and sensitive task of handling decisions on their behalf.
The Bill offers better protection for people who lack capacity and for carers and professionals. For the first time, it offers statutory guidance to help assess what constitutes someone's best interests. All decisions must be made in the best interests of the incapacitated 50WS person, with adequate weight given to what they would have wanted—their wishes, feelings, values and beliefs—and ensure the least restrictive effect possible on their basic rights and freedoms.
Guided by those principles, the Bill provides a legal basis for a person to undertake "acts in connection with care and treatment" on behalf of an adult who lacks capacity. That provision was drafted as a "general authority" in the draft Bill, but we have renamed and recast it to ensure that it is not misinterpreted or misunderstood. The provision is not about granting a new authority to intervene in the life of someone lacking capacity but simply confirms that carers are protected from liability when they demonstrably act in the best interests of a person who lacks capacity to consent to what is done.
The Bill provides formal mechanisms to support the decision-making process and offer protection to those involved. It establishes lasting powers of attorney (LPAs), allowing people to appoint an attorney to act on their behalf if they should lose capacity in the future. Unlike a current enduring power of attorney (EPA), an LPA can extend to welfare and health matters, as well as financial matters, if the donor wishes. The Bill also creates a system of court-appointed deputies to replace and extend the current system of receivership in the Court of Protection.
The Bill clarifies, with additional safeguards, the current common law rules about advance decisions to refuse treatment. This confirms that people may plan ahead, if they wish, to refuse specific treatments. A properly made, valid and applicable advance decision has the same weight as a refusal of treatment made by a person with capacity, but doctors will need to consider whether the advance decision is valid and applicable, and any doubt must always be resolved in favour of the preservation of life.
There are other provisions to protect the needs of the person lacking capacity. The Bill introduces a new criminal offence of neglect or ill treatment that can he used against a carer, attorney or deputy who has ill treated or wilfully neglected a person who lacks capacity. A person found guilty of such an offence may be liable to a term of up to five years' imprisonment.
The Bill sets up a new Court of Protection and a new statutory figure, the Public Guardian. Both will be built around the needs of those who lack capacity. The new court will have jurisdiction to consider applications for both financial and health and welfare decisions. The Public Guardian will be the registering authority for LPAs and court-appointed deputies and will work with other agencies, such as the police and social services, to respond to any concerns about possible abuse.
Following the recommendations of the Joint Committee, the Bill provides for properly controlled research that respects the requirements in the Clinical Trials Directive (2001/20/EC) implemented in the UK on 1 May 2004. This will allow for research into 51WS conditions related to mental incapacity and how people with capacity problems can be helped. Research studies will be endorsed by a research ethics committee to ensure that the project is necessary, safe and cannot be done using people who have mental capacity. There will be stringent safeguards around an individual's participation in a study.
The Bill will also now provide for an independent consultee to speak up for people who do not have a relative or carer when decisions are taken about serious medical treatment or long-term residential care. The intention is that such consultees will also be involved in annual care reviews for those people, where they have previously been involved in the original decision. There will be a regulation-making power to extend the provision to other serious decisions and vulnerable groups on which we intend to consult stakeholders.
The Government agree with the Joint Committee that codes of practice will be essential for the proper 52WS and effective implementation of the new legislation and that drafts should be available to assist parliamentary consideration of the Bill. Therefore, codes of practice will be available at Commons Committee stage. There will be extensive consultation on full codes of practice to accompany the Bill when it becomes law, and they will be laid before Parliament in draft. Copies of the draft codes will be available in the Libraries, the Vote Office and the Printed Paper Office, when they are published at Committee stage.
The Government very much welcomed the Joint Committee's finding that,
many of the fears that have been raised about possible connections between the draft Bill and euthanasia appear to be misplaced".The Bill has nothing at all to do with euthanasia. Its aim is to empower and increase protection for thousands of vulnerable adults. For the avoidance of any doubt, the Bill now expressly states that nothing in it affects the law on murder, manslaughter or assisted suicide.