The Mental Capacity Bill
The Bill was discussed today in the Chamber on Report satge and 3rd Reading. I have never read so much lobby and publication briefing on an issue before, as this has become so complicated. Despite the headlines in some newspapers and the simplicity of quite a bit from the official lobbyists & Pressure Groups this is not a straightforward issue. It is certainly not as straightforward as they would have their supporters believe. many lobbyists do a great dis-service to rational debate in this place.
I enter the debate supporting the concept of the Mental Capacity Bill and most of its provisions. I don't know of any sensible person who does not. However, the entire Bill has been reduced to a debate about one small aspect and it has been easier in the media to describe it as euthanasia, when in fact Clause 58 specifically strengthens the law against euthanasia.
I am opposed to euthanasia. I would vote against anything that I considered to be euthanasia - wether up front or by the back door. As you can see from the debate in the commons I intervened to get this clarification, and I firlmy believe that the Minister - on the record - also gave every reassurance that the catholic Bishops have been requesting to clarify inadvertant consequences they perceived to flow from the Bill. Mnay of us still do not agree with their interpretation of the potential consequences, but would still like reassurance to give to those constituents who sought it.
The Mental Capacity Bill returns to the Commons on 14th December for Report Stage and 3rd Reading. There still seems to be some confusion between competing arguments - not helped by the irrational and ridiculous headlines in the Daily Mail.
The Bill is not about Euthanasia - The Making Decisions Alliance, which includes the Alzheimer's Society, Age Concern, Mencap and the National Autistic Society among its members, is calling the euthanasia fears "misplaced and misguided".
On Monday, the alliance claimed: "It will not change the current law on euthanasia and will actually provide a series of better safeguards when decisions are made for people who lack capacity."
The British Medical Association also backs the bill, saying it does not legalise euthanasia and just gives incapacitated people the same rights as others.
The Mental Capacity Bill is a welcome Bill that provides a legal framework for decision making for people who lack mental capacity.
This is an extremely complex and emotional area and the Bill has ben significantly improved in its passage through the House of Lords.
There has been some concern that the Bill will legalise euthansia. Although the joint Commitee on the draft Bill said that they considered that many of the fears raised about the possible connections between the draft bill and euthanasia were misplaced they did recommend that additional assurances in the bill to make it clear that nothing in the Bill permits euthanasia or alters the law realting to it. These changes have been made and there is now a clause which should leave nobody in doubt - nothing in the Bill "affects the law realting to muder, manslaughter or assisted suicide"
Comments from the Minister
A cultural shift in attitude towards more than two million adults who have limited capacity to make decisions for themselves was heralded today by Constitutional Affairs Minister Lord Filkin as he published the Mental Capacity Bill.
The Mental Capacity Bill would, 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.
Vulnerable people would be empowered to make as many decisions for themselves as possible and where they can't, the Bill would protect them and their carers by setting out who can make decisions on their behalf, in what situations and how they should go about this. It would also make neglect or ill treatment of a person who lacks capacity a criminal offence with a maximum sentence of five years.
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."
Whilst existing legal processes can sort out financial matters, there is currently no statutory framework dealing with health and welfare decisions for those who lack capacity. The Bill builds on common law rules and current good practice. It would provide a legal basis for decision makers in the following ways:
* Best interests - The Bill would provide a checklist to help carers and decision makers work out what is in a person's best interests including, for the first time a legal obligation to take into account the views of family and friends.
* Acts in connection with care and treatment - The Bill would enable carers and professionals, subject to clear rules and limitations, lawfully to care for someone who cannot consent eg by washing them, providing medical or dental treatment, taking them on a trip etc.
* Independent consultee - People who have no friend or relative to speak up for them would be provided with an independent consultee to help ensure that decisions about serious medical treatment or long-term residential care are made in the individual's best interests.
* Research - The Bill would set out clear parameters under which research into mental incapacity can be undertaken, subject to strict safeguards.
* Lasting powers of attorney (LPAs) - People would be able to appoint an attorney to act on their behalf in welfare, healthcare and financial matters should they lose capacity in the future. They must be registered before they can be used.
* Court appointed deputies - Deputies would be able to take decisions on welfare, healthcare and financial matters as determined by the Court of Protection.
* Advance decisions (sometimes known as 'living wills') - Statutory rules with clear safeguards would confirm that people can set out specific medical treatments they wish to refuse should they lose capacity in the future.
* Criminal offence - This new offence of neglect or ill treatment, with a maximum sentence of five years, could punish a carer, attorney or deputy who has ill-treated or wilfully neglected a person who lacks capacity.
* New Court of Protection - This court would appoint deputies and could also remove them and attorneys if they were found to be acting inappropriately. It would consider applications for financial decisions as well as serious health and welfare cases which currently have to go to the High Court.
* New Public Guardian - This new public official would be the registering authority for LPAs and deputies, also supervising deputies and working together with other agencies such as the police and social services, to respond to any concerns about LPAs.
* Codes of Practice - These will accompany the Bill providing guidance to families, professionals and carers. Draft codes will be available to Parliament at Committee stage of the Bill.
The Bill has been subject to scrutiny by a Joint Parliamentary Committee and its recommendations have been taken account in the revised Bill published today.
Lord Filkin added:
"Earlier drafts of the Mental Capacity Bill have been quite wrongly linked with the idea of legalising euthanasia. This Bill expressly provides that it does not affect the law on murder, manslaughter or assisted suicide. On the contrary, the aim of the legislation is to ensure that all decision making is in the individual's best interests. I hope the Bill we have published today will finally lay to rest the misplaced concerns about euthanasia."
Joint champion of the Bill, 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.
"The Bill provides a clear legal framework for health and social care professionals, carers and anyone acting on behalf of people who lack capacity."