Forum Brief: Mental Capacity Bill
The government is today set to detail legislation to create "living wills" for those who become mentally incapacitated.
The bill will introduce a legal framework giving a nominated individual the power of attorney over a patient's affairs.
This would not only include the right to make financial decisions, as is currently the case, but also the right to decide what sort of treatment, if any, a patient should receive.
Government Response: Department for Constitutional Affairs
Lord Filkin said: “At some point in our lives we are all likely to be affected by a lack of capacity to make decisions, either personally, or because someone close to us is unable to make decisions for themselves. No clear and reliable legal framework currently exists to guide carers, families and professionals in decision making. As a result, people who lack capacity can be excluded from personal decision making and are vulnerable to abuse; carers can be open to criticism or even prosecution. It is also difficult to plan ahead for a time when you might lose capacity.
“The Mental Capacity Bill heralds a cultural shift in the way we treat people who lack capacity. Vulnerable people will no longer be labelled ‘mentally incapable’ and their views forgotten about. Instead they will be placed at the heart of decision making, empowered to make as many decisions for themselves as possible. And where they can’t, their best interests will be paramount. Carers and professionals will be clearer about their legal position.“
Government Response: Department of Health
Rosie Winterton, health minister said: "This legislation is vitally important in providing increased protection for many of the most vulnerable groups in society, whilst maximising people's autonomy. Our aim is to better protect all those who are born with impaired capacity, those who lose capacity perhaps through an injury or illness, those who have periods of incapacity due to a mental disorder and those who suffer from dementia in later life. In every situation we will work from the basis that an individual is able to make a decision until proved otherwise."
Party Response: Liberal Democrat
Paul Burstow MP, Liberal Democrat health spokesmand said: “The Bill is long overdue and a welcome clarification of the law. It strenthens the rights and protection of people who lack the capacity to make decisions themselves.
“This Bill is not a measure to introduce euthanasia through the back door as many have claimed. It ensures that, for the first time, the voiceless and powerless will have their needs and wishes listened to and respected.”
Forum Response: SANE
Marjorie Wallace, chief executive of the mental health charity SANE, said: "We have welcomed the plans to introduce capacity legislation, to give greater protection to people with mental illness at times when they lack capacity, and to those caring for them the ability to decide on matters affecting their wellbeing. We wish individuals to have the dignity of being able to decide in advance what would happen to them if they became so incapacitated that they could not make reasoned decisions. We wish carers to be given rights to match their heavy responsibilities and enabled to do their best to ensure that the person they care for gets reasonable treatment.
"The Bill published today should provide the fullest rights and protections for those affected by mental illness and include the formerly announced new criminal offence of neglect or ill-treatment against anyone who has ill-treated or wilfully neglected a person who lacks capacity."
Forum Response: The Stroke Association
A spokesman for the Stroke Association said: "A quarter of a million people are living with long-term disability as a result of stroke. Stroke has a greater disability impact than other chronic disease and causes a greater range of disabilities than any other condition. Many people are unaware that stroke can also cause dementia and depression in patients, increasing their vulnerability even more.
"The Stroke Association advocates independent living for stroke patients and therefore fully supports The Mental Capacity Bill, which will empower people to make their own decisions. For people who lack capacity to do so, clarification on who should make decisions on their behalf is welcomed and will provide further protection against neglect and mistreatment."
Forum Response: National Autistic Society
Gavin Owen, policy officer (adults) for the National Autistic Society said: "The Mental Capacity Bill will affect every person with autism. As a spectrum disorder the balance between supporting people to make and communicate their decisions as well as protecting people without capacity is particularly important. The major concern for the National Autistic Society is the lack of advocacy provision within the Bill."
Forum Response: Making Decisions Alliance
The Making Decisions Alliance includes ePolitix Forum Members: Age Concern, Help the Aged, Counsel and Care , Leonard Cheshire and United Reponse.
Richard Kramer, co-chair of the MDA, said: "We have been waiting for legislation for 15 years. But this Bill will not achieve its aim of enabling people to take more control of their lives if advocates are not given more of a central role in representing those affected.
"Advocacy is vital to ensuring that people have a say in the decisions that affect their lives, and their availability protects the rights of those who need support to make decisions.
"This Bill is an opportunity for the government to commit resources and support to independent advocacy that have been absent from many previous initiatives, where independent advocates have received little more than kind words from government."
Forum Response: ProLife Party
Dominica Roberts, ProLife Party leader said “The ProLife Party does not believe the government's insistence that the bill does not change the law about euthanasia. ‘Living wills’ could force doctors to be complicit in patients' suicide, and Lasting Powers of Attorney in their murder. Euthanasia by withdrawal of artificially provided nutrition and hydration would become commonplace. ‘Best interests’ should never mean deliberately ending a patient's life. Proposed safeguards are inadequate, notably because there is no one charged with the duty of enquiring into the inevitable abuses which would occur. “
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