The Draft Mental Incapacity Bill

Camilla Parker

doi:10.19164/ijmhcl.v1i10.142

Abstract

<p align="LEFT">Despite the general agreement with the Law Commission’s assessment of the failings of the current system for decision-making on behalf of people who lack the capacity to make decisions for themselves, the steps towards achieving comprehensive reform, as recommended in its report, Mental Incapacity, has been a protracted process. Mental Incapacity was followed, two years later, by a consultation paper – 'Who Decides? Making Decisions on Behalf of Mentally Incapacitated People' – in which the Government sought views on the Law Commission’s recommendations for reform. In October 1999, the Lord Chancellor’s Department published 'Making Decisions', which set out the Government’s proposal for reform, "in the light of the responses to the consultation paper Who Decides".</p><p align="LEFT">In June of last year the reform process moved to a significant stage with the publication of the Government’s draft Mental Incapacity Bill (‘the Draft Bill’). This set out proposals to reform the law: "in order to improve and clarify the decision making process for those aged 16 and over who are unable to make decisions for themselves." Thus provisions set out in the Draft Bill are based on the Law Commission’s recommendations.</p>

Highlights

No clear timescale was given for the reforms, with Making Decisions stating that they could only be taken forward ‘when Parliamentary time allows’
The Draft Bill was considered by the Joint Committee on the Draft Mental Incapacity Bill which published its report in November 20035
The Joint Committee stressed the enormity of the task it was expected to meet – in just over two months, providing detailed scrutiny of a draft Bill which was ‘the product of an extensive consultation stretching back to 1989’

Summary

Introduction

‘It is widely recognised that, in this area, the law as it stands is unsystematic and full of glaring gaps’. (Mental Incapacity, Law Commission, 1995)[1]. In June of last year the reform process moved to a significant stage with the publication of the Government’s draft Mental Incapacity Bill (‘the Draft Bill’) This set out proposals to reform the law:. The recommendations include the need for guiding principles to be set out in the Bill[6]; greater clarity in relation to the scope of powers under the Bill[7]; the grey areas between the draft Bill and the present Mental Health Act 1983 ( the ‘Bournewood gap’8) to be addressed[9] and the title of the Bill to be changed to ‘the Mental Capacity Bill’ to reflect more accurately the purpose of the Bill which is to recognise and give effect to the right to make decisions and remove the pejorative associated with incapacity[10]. Those it is intended to help have waited long enough for the benefits it should bring them’[11]

Overview of the Proposals

Paragraph 44

The Aftermath of Bournewood

40 Section 58 of the MHA 1983

Conclusion