Headlines: June 21st, 2004

The Government has heralded what it sees as a cultural shift in attitude towards more than two million adults who have limited capacity to make decisions for themselves. For the first time there will be a statutory framework to assist them in making decisions about health and welfare issues.The Mental Capacity Bill, published by Constitutional Affairs Minister Lord Filkin, will for the first time, ensure that people who lack capacity either through disability, mental illness, brain injury or illnesses such as dementia are placed at the heart of decision making. The aim is that vulnerable people will be empowered to make as many decisions for themselves as possible.

In circumstances where they cannot make decisions, the proposed legislation will protect them and their carers by setting out who can make decisions on their behalf and in what situations. Neglect or ill treatment of a person who lacks capacity will be made a criminal offence with a maximum sentence of five years.

Lord Filkin said the Bill heralded a cultural shift in the way people who lack capacity are treated. Existing legal processes deal with financial matters but there is currently no statutory framework dealing with health and welfare decisions for those who lack capacity. The proposals would provide a legal basis for decision makers in a number of ways. The Bill will provide a checklist to help carers and decision makers work out what is in a person’s bestinterests and enable carers and professionals, subject to rules and limitations, to care for someone who cannot consent such as by washing them or providing medical or dental treatment. People without a friend or relative to speak for them would be provided with an independent consultee.

The proposals also open the possibility of advance decisions – sometimes known as ‘living wills’ – allowing people to set out details of specific medical treatments they wish to refuse should they lose capacity in the future. The Bill would also see the creation of a new Court of Protection and the appointment of a Public Guardian.