UK: The Mental Capacity Bill: its Impact on Living Wills and Powers of Attorney

Last Updated: 21 September 2004
Article by Kelly Noel-Smith and Suzannah Bancroft

Originally published August 2004

The Government published the Mental Capacity Bill (the "Bill") at the end of June 2004. It is currently anticipated that the Bill will be enacted in Spring 2005. When enacted, it will provide a statutory framework:

  1. to protect and empower vulnerable people by enshrining case law and common law rules in legislation;
  2. to govern Living Wills;
  3. reforming the existing law governing Enduring Powers of Attorney and Court of Protection receivers.

The Bill is structured around five key principles:

1. Assessing Lack of Capacity

A "decision-specific" test will assess whether a person lacks capacity to make a particular decision at a particular time: a person will be assumed to have capacity until it is proved otherwise. A person will not be labelled incapable as a result of a particular medical condition or diagnosis as it is acknowledged that people can make many of their own decisions even when they may lack capacity in relation to some complex issues.

2. The right for individuals to be supported to make their own decisions

The Bill sets out that people should be given all appropriate help before anyone may conclude that they cannot make their own decisions.

3. The right for individuals to make eccentric decisions

The Bill recognises that individuals must retain the right to make what might be seen as abnormal or unwise decisions.

4. Best interests

An individual’s wishes, feelings and participation are recognised as being of paramount importance and anything done for or on behalf of people without capacity must be in their best interests. The Bill sets out a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. The Bill includes, for the first time, a legal obligation to take into account the views of family and friends.

5. Least restrictive intervention

Actions taken and decisions made for or on behalf of people without capacity should be those which are the least restrictive of their basic rights and freedoms.

The Bill includes new rules to govern research involving people who lack capacity and provides for a new independent consultee to provide advice in relation to certain decisions. The Bill also provides recourse to a new Court of Protection, which will have power to deal with all personal welfare, health care and financial decisions on behalf of adults lacking capacity.

Advance decisions to refuse treatment ("Living Wills")

Living Wills enable people to set out the medical care they would like to receive if they become seriously ill or unable to make their own decisions. It was recently confirmed in the case of HE v NHS Trust A and AE [2003] EWHC 1017 (Fam) that a competent adult patient’s anticipatory refusal of consent remains binding and effective notwithstanding that the patient has subsequently become incompetent. The Bill clarifies the common law position and defines an "advance decision" as an actual decision made to refuse treatment by a patient, even though this decision may have been made at an earlier date. On enactment of the Bill, Living Wills will be decisive in certain situations.

  • A qualifying advance decision must be made by a person who is 18 or over and at a time when the person has capacity to make it.
  • It must specify the treatment being refused, although this can be in lay terms and may specify particular circumstances in which the refusal will apply.
  • An advance decision can be completely changed or withdrawn while a person making the decision has the mental capacity to do so. If a person has acted in a way that is inconsistent with the advance decision remaining his set decision, the advance decision may be invalid.
  • If a person still has capacity to make a decision at a particular time, the advance decision will not be effective. In addition, advance decisions will not apply to treatments not specified in the decision or in circumstances not specified in the decision.
  • If there are reasonable grounds for believing that the current circumstances were not anticipated by the person who made the advance decision and that those circumstances, if predicted, may have affected that person’s decision, the advance decision may not be effective.

After enactment of the Bill, an advance decision which is both valid and applicable will be effective as if the decision had been made by a person with capacity. If there is any doubt as to the validity or applicability, the Court can determine the issue.

Lasting Powers of Attorney (LPAs)

Enduring Powers of Attorney allow people to appoint an individual to look after their affairs if and when they lose capacity to make their own decisions. However, it is not currently possible to appoint someone to make decisions on health and welfare. The Bill proposes to allow people to appoint an attorney to make these decisions on their behalf should they become seriously ill or unable to make decisions. A Lasting Power of Attorney ("LPA") will be the legal document by which such an attorney is appointed to act in welfare, healthcare and financial matters, should the person making the appointment lose capacity in the future. It will not be possible to use an LPA until it is registered. The Office of the Public Guardian will be the registering authority for LPAs.

Note that, whilst the Enduring Power of Attorney Act 1985 is to be repealed, its terms will continue to apply, through provisions of the Bill, to existing Enduring Powers of Attorney.

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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