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November 2004

The Committee stage of the Mental Capacity Bill in the House of Commons has now finished and though we are not quite sure where the Committee's report back to the Commons on the Bill will take place before the Queens Speech or after, but almost certainly no later than early December.

The MDA was very active in both lobbying MPs on the Committee to support our proposed amendments to the Bill and also attending the Committee's sessions. Disappointingly, the Government accepted few of our proposed amendments though there will be further opportunities to table amendments at Report stage and when the Bill goes to the House of Lords.

Roughly speaking, the outcome from the Committee's deliberations on the Bill's clauses and our amendments were as follows:

  • The Bill's Principles - no significant change except our amendment on a new principle emphasising the importance of ensuring the provision of communication aids to help people express views/make their decisions was accepted.
  • Lasting Power of Attorney and court-appointed deputies - no significant changes
  • Advance refusals of treatment - no change
  • Research - some change - the Government is considering issues around whether court-appointed deputies who don't know the person should be allowed to make decisions regarding them taking part in research
  • Independent consultee (IC) - no change apart from government amendments emphasising that the IC should very much be representing the person's views . The Government amendments state that the IC must represent P's wishes and feelings. (though still advising the decision-maker on P's best interests).
  • None of our amendments on a non-discrimination principle, advocacy, treatment safeguards, advance statements, duty of public bodies to assess capacity, withdrawing deputies power to consent to life-sustaining treatment, or other safeguards flagged up by the recent Bournewood ruling were accepted by Government.
If you are interested in reading the details of the Committee's discussions you can find them at:

The outcome is therefore disappointing and further meetings with the government has shown little indication of any movement on these issues in terms of incorporating them in the Bill in the future. The Government are still very concerned about the 'right to life' lobby and that the independent consultee (IC) is a significant concession. However there is considerable discussion currently taking place among advocacy organisations about the IC and what position those organisations intend to take which may help MDA organisations in reaching a view on that particular issue. However we still feel very strongly that the criteria for being provided with an IC are too narrow (people with families should be included, not just the "unbefriended") and that the situations it applies to are too limited (should include people for whom there is significant doubt about their capacity, not just those who don't have capacity, and also situations involving disputes). We will continue therefore to push the Government on these issues and our other areas of concern.

As regards advance statements in particular the recent court case that relates to the former (referred to as the Burke case) is being appealed by the General Medical Council. As regards the Bournewood ruling the Government has announced that it will be consulting on how best to address the ruling although the timing of this consultation means it is unlikely that safeguards will be included in the Mental Capacity Bill. Instead it is possible it may be covered in new mental health legislation and the Parliamentary Scrutiny Committee that is currently looking at the Draft Mental Health Bill 2004 have asked the MDA to give evidence on the overlap between the two Bills.

The information on this page was provided by members of the Making Decisions Alliance. It was last updated on22 December 2004.

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