Row over incapacity plans

People 'should make their own decisions'

Proposals to protect the right of mentally incapacitated people to be involved in important decisions about their life have been published by the government.

The draft Mental Incapacity Bill aims to put into law the principle that all adults are assumed to have capacity to make decisions for themselves.

Campaigners say this is vital for people who are currently often wrongly assumed to be incapable of making decisions. It will help them to remain as independent as possible.

However, there is also concern that it will make it easier for doctors to withdraw treatment from patients who are terminally ill - something the government has denied.

The proposals could affect approximately two million people, including those with dementia, profound learning difficulties, autism, or severe head injuries.

The draft Bill, published by the newly created Department for Constitutional Affairs, promises to give them more control over issues such as the treatment they receive, how they spend their money and where and how they live.

This may be presented as an innocent attempt to tidy up the law, but it is actually creeping euthanasia Professor Jack Scarisbrick

It will also allow them to plan for the future by appointing specific people such as family members or carers to make day-to-day decisions on their behalf.

Announcing the proposals, Lord Filkin said: "Our aim is to better protect all adults who have suffered impaired capacity from a young age, those who lose capacity perhaps through an injury or illness, those who have periods of incapacity and those who suffer from dementia in later life."

The draft Bill is based on the assumption that a person has capacity to make a decision unless it is shown otherwise.

It stresses that all decisions taken on behalf of a mentally incapacitate person must be based on what is best for them - and it sets out a checklist of "best interests" factors to guide decision-makers.

And it proposes that the abuse of a person lacking capacity be made a criminal offence

The draft Bill will now be scrutinised by a Joint Committee of the Houses of Parliament.

'Area of uncertainty'

A spokesperson for the British Medical Association welcomed clarification of the issue.

"At present doctors treating incapacitated patients are working in an area of uncertainty and they need the right legal framework to help them make appropriate decisions for patients."

Paul Farmer, chair of the Mental Health Alliance which was set up to campaign for better mental health legislation, said: "We welcome the imminent draft Mental Incapacity Bill.

"It will help to provide greater security for people with mental health problems and allow for greater individual control over care and treatment."

'Path to euthanasia'

Richard Kramer, co-chair of the Making Decisions Alliance, said it was vital the final Bill struck the right balance between protecting people who have difficulty making decisions and empowering those who can to make as many decisions as possible.

However, Professor Jack Scarisbrick, chairman of the pro-life charity Life, is concerned that the greater powers handed to relatives and carers to act on patients' behalf could make them more vulnerable to having treatment withdrawn.

He said: "There will be very serious pressure on the patient to consent to granting power of attorney to a carer or relative at a time when they are vulnerable and frightened of being a burden.

"This may be presented as an innocent attempt to tidy up the law, but it is actually creeping euthanasia. Inevitably it will load the dice against the sick person."

'Helpless'

But Marjorie Wallace, chief executive of the Mental Health Charity SANE, welcomed the move.

"We are especially pleased that at last the carers will be given rights to match their already heavy responsibilities and no longer left to feel helpless and unable to ensure that the person they care for gets reasonable treatment," she said.

Deborah Annetts, chief executive of the Voluntary Euthanasia Society, said: "We welcome today's draft legislation on mental incapacity.

"It recognises people want their medical treatment wishes respected, even if they cannot communicate them to their doctor."

Richard Kramer, co-chair of the Making Decisions Alliance, said: "The emphasis should be on supporting people, as far as possible, to make decisions for themselves. This needs to be reflected in legislation."

A spokesperson for the Disability Rights Commission said: "The importance of this bill for disabled people is to ensure that no one is written off as being incapable of making a decision, whether it's about their healthcare or finances."

It is estimated that over 700,000 people in the UK currently suffer from dementia and this figure is likely to increase to about 840,000 by 2021.

Around 145,000 adults in England have severe and profound learning disabilities and at least 1.2 million have a mild to moderate disability.

In Wales over 12,000 people were registered as having a learning disability in 2001.