House of Lords House of Commons Joint Committee on the Draft Mental Incapacity Bill Draft Mental Incapacity Bill Session 2002–03 Volume I HL Paper 189-I HC 1083-I House of Lords House of Commons Joint Committee on the Draft Mental Incapacity Bill Draft Mental Incapacity Bill Session 2002-03 Volume I Report together with formal minutes Ordered by The House of Commons to be printed 17 November 2003 HL Paper 189-I HC 1083-I Published on 28 November 2003 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £0.00 The Joint Committee on the Draft Mental Incapacity Bill The Joint Committee on the Draft Mental Incapacity Bill was appointed by the House of Commons and the House of Lords on Friday 11 July 2003 to examine the Draft Mental Incapacity Bill and report to both Houses no later than four months after the presentation of the draft Bill Current membership Lord Carter (Labour) Chairman Baroness Barker (Liberal Democrat) Baroness Fookes (Conservative) Baroness Knight of Collingtree (Conservative) Baroness McIntosh of Hudnall (Labour) Lord Pearson of Rannoch (Conservative) Lord Rix (Crossbencher) Baroness Wilkins (Labour) Mr John Bercow MP (Conservative, Buckingham) Mrs Angela Browning MP (Conservative, Tiverton and Honiton) Mr Paul Burstow MP (Liberal Democrat, Sutton and Cheam) Jim Dowd MP (Labour, Lewisham West) Stephen Hesford MP (Labour, Wirral West) Mrs Joan Humble MP (Labour, Blackpool North and Fleetwood) Huw Irranca-Davies MP (Labour, Ogmore) Laura Moffatt MP (Labour, Crawley) Powers The committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet away from Westminster, to meet at any time, (except when Parliament is prorogues or dissolved), to appoint specialist advisers, and to make reports to the two Houses. Publication The Report and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Joint Committee (including press notices) are on the Internet at www.parliament.uk/parliamentary_committees/jcmib.cfm Committee staff The staff of the Committee were drawn from both Houses and comprised Gordon Baker and Sîan Jones (Clerks), Francene Graham (Committee Assistant), and Melanie Moore (Committee Secretary). The Committee was supported by the Scrutiny Unit in the House of Commons Committee Office. Contacts All correspondence should be addressed to the Clerk of the Joint Committee on the Mental Incapacity Bill, House of Lords, London SW1P 0PW. The telephone number for general enquiries is 020 7219 8387; the Joint Committee’s email address is [email protected] 1 Contents Report Page Summary 5 1 Chapter 1 Background to the Draft Bill: 9 Consultation 9 2 Chapter 2: Conduct of the Inquiry 11 3 Chapter 3: Is the Bill necessary? 13 4 Chapter 4: Principles of the Bill 15 5 Chapter 5: Human Rights Considerations 18 Human Rights Act Compatibility 18 Article 2(1) provides: 19 Article 6(1) provides: 20 6 Chapter 6: (Clauses 1-3) Decision-making capacity 22 Clause 1: Decision-making capacity 22 7 Chapter 7: (Clause 4) Best interests 25 The concept of “best interests” 25 The definition and scope of best interests 26 Best ‘personal’ interests 27 Primacy of interests 28 Values 29 Human rights 29 Consultation with others 29 Standard of conduct / Duty of care 31 Reasonable belief 31 8 Chapter 8: (Clauses 6-7) The General Authority 32 The rationale behind creating a ‘general authority’ 33 Concerns arising from drafting and terminology 35 Best interests 37 Reasonable belief 37 The scope of the general authority 38 The adequacy of safeguards 39 Further exclusions 41 Dispute resolution mechanisms 41 Use of force 42 9 Chapter 9: (Clauses 8-13) Lasting Powers of Attorney 43 10 Chapter 10: (Clauses 14-22) The Court of Protection and Court Appointed Deputies 49 11 Chapter 11: (Clauses 22-26) Advance Decisions to Refuse Treatment 55 Recommendations 58 12 Chapter 12: (Clause 27) Linkage with the Mental Health Act/Bill 60 Clause 27: Interface with mental health legislation 60 Mental Health Act 1983 61 The ‘Bournewood gap’ 63 13 Chapter 13: (Clause 30) Codes of Practice 64 Status of the Codes of Practice 64 Preparation and revision of the Codes of Practice 65 Content of the Codes of Practice 66 Best interests 68 Decision-makers acting under formal powers 69 Monitoring implementation of the Codes of Practice 70 14 Chapter 14: Protection against abuse and exploitation 71 Arrangements for dealing with abuse 71 The need for additional powers? 72 Switching the burden of proof 74 Criminal law provisions 74 15 Chapter 15: Medical Research 75 16 Chapter 16: Advocacy 79 The need for advocacy services 79 A right to advocacy? 80 The role and status of advocates 82 Standards and quality of advocacy services 82 17 Chapter 17: Resources 83 What will the Bill cost? 83 Cost of Possible Additions to the Bill 87 Will the resources be available to implement the Bill? 87 What will the benefits of the Bill be? 88 Conclusions 89 18 Chapter 18: Access to Information 90 ACCESS TO INFORMATION 90 19 Chapter 19: Jurisdiction 92 JURISDICTIONAL ISSUES 92 20 Chapter 20: Change of Title 94 Conclusions and recommendations 94 Annex: Press Notice issued on 17 July 2003 109 3 Formal minutes 112 Witnesses 123 List of written evidence 124 List of unprinted written evidence 128 5 Summary The draft Mental Incapacity Bill is the product of extensive consultation stretching back to 1989. We have been expected to scrutinise and report on it in little more than two months working time: an over-optimistic timescale which calls into question the process for setting deadlines for pre-legislative scrutiny. However we have considered over 1200 written submissions, heard evidence from 61 witnesses and have produced as thorough an analysis as possible in the time available. On the whole, we endorse the principles and general direction of the draft Bill. The majority of evidence we received was broadly supportive of the Bill. We believe that there is a clear need for the bill and our report, whilst critical, should be read accordingly. The difficulty of trying to create satisfactory legislation in this complex and sensitive area should not be underestimated. The draft Bill has provoked strong feelings, both positive and negative. We sympathise with some of the anxieties expressed, though we believe that many of them are misplaced. Nevertheless, considering the long gestation period it has had, the draft Bill still has shortcomings. We believe those shortcomings can and should be rectified. Although a great deal of work remains to be done to get the Bill right, and strong feelings about it will undoubtedly remain, we hope it will soon be brought before Parliament. Those it is intended to help have waited long enough for the benefits it should bring them. We endorse the draft Bill’s widely-supported aim of replacing common law uncertainties by a comprehensive statutory framework to define mental capacity, help those lacking it to make their own decisions where they can and enable sound decisions to be made for them when they can not. We believe that the Bill should follow the model of the comparable Scottish law by setting out the guiding principles at the start. While this may not be necessary for lawyers, it will undoubtedly be helpful for the many lay people likely to be affected by it and will set clear guidelines around which good practice can be developed. The draft Bill rests on a combination of the well-established common law principle of best interests and the presumption of capacity. We think this approach is sound. The Bill should be seen as enabling rather than restrictive, although it has to strike a delicate balance between respect for individual autonomy and the need to protect the vulnerable. We acknowledge the difficulties inherent in trying to create a satisfactory legislative framework for mental capacity of varying degrees, from temporary to permanent and including fluctuating capacity, and for decisions ranging from the everyday to the life changing. The draft Bill’s yardstick of functional capacity – assessing capacity in relation to the required decision at the time when it is needed – seems right. The concept of best interests is the draft Bill’s other cornerstone. This is well-enough understood by lawyers, but perhaps open to misinterpretation by others. Decision-makers must be clear about what is expected. The draft Bill introduces the new concept of General Authority. This is intended to replace the common law defence of necessity with positive permission-giving arrangements for 6 taking everyday and emergency decisions. The concept has been widely misunderstood and the term “authority” itself seems to have negative connotations for some who fear it amounts to licensed paternalism. Consideration should be given to a more appropriate term. Proposals in the draft Bill would extend the present Enduring Powers of Attorney to a new Lasting Power of Attorney, which will include decisions on welfare and healthcare as well as financial management. We received disturbing evidence indicating serious abuse of financial powers under the present Enduring Powers of Attorney which the Bill must strive to curb. Stricter safeguards will be needed and those who act under these powers will need clear guidance on what is involved and be required to keep adequate records of financial transactions. We welcome the draft Bill’s proposal to introduce a new Court of Protection: a more accessible single jurisdiction with powers and authority akin to those of the High Court. But we are concerned over the apparent limitations on availability of legal aid. Deputies appointed by the Court to take decisions on behalf of those lacking capacity will need clear standards of conduct and limitations on their autonomy.