Living wills get official support
New Government legislation is set to allow individuals to make “living wills”.
It offers an opportunity for those concerned by Alzheimer’s, Parkinson’s or Dementia to express in advance their wishes about future medical treatment.
The proposals are contained in the Mental Capacity Bill, due to be published today.
At the moment the law lets such people hand over their financial decision-making to a second party, but they are barred from appointing someone else to take decisions about their health.
This has led to some situations where doctors have taken decisions about a patient’s treatment without consulting their loved ones.
The Bill will also seek to allow vulnerable people to make as many decisions for themselves as possible. It would also make neglect or ill treatment of a person who lacks capacity a criminal offence with a maximum sentence of five years.
Constitutional Affairs Minister Lord Filkin said: “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.
Provisions in the Bill include a legal obligation to take into account the views of family and friends, appointment of independent consultees for those people who do not have family or friends, and the ability to appoint an individual who has lasting powers of attorney.
At present, there is no legal definition of incapacity, and people diagnosed with certain conditions, such as dementia, are not allowed to judge if they can live independently – even though they may retain their decision-making ability.
To that end, the Bill creates a test for incapacity, which states that someone must be unable to understand information relevant to a decision or to retain and weigh that information before they are judged to lack the capacity to make decisions.
Lord Filkin said the principles in the Bill stressed that it was no longer acceptable to ‘write someone off’ if they had a mental illness. Carers had to work with them constructively, rather than just passing judgment.
He said the Bill did not list which mental conditions were or were not covered because it took a different approach. It started from the premise that everyone was capable, regardless of their condition, until they had to undergo the decision-based test.
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.”
It is estimated that 700,000 people in the UK currently suffer from dementia, 145,000 adults in England have severe and profound learning disabilities, and at least 1.2 million have a mild to moderate disability.
