The draft Capacity Bill 2022 has been approved by the Council of Ministers and will now be considered by the House of Keys and then the Legislative Council, with its first reading scheduled for 3 May.
The Bill will be subject to parliamentary scrutiny in the House of Keys and Legislative Council through summer, and if approved by Tynwald the Bill will then be submitted for Royal Assent before becoming law.
The Capacity Bill creates an essential protective framework to safeguard the rights, dignity and wellbeing of people who may have lost the capacity to make decisions for themselves.
Capacity issues have the potential to affect everyone. A person’s capacity to make decisions may be impaired for a variety of reasons such as disabilities or learning difficulties, mental health problems, suffering a stroke or head injury, or the onset of dementia.
Alternatively, it may be because at the time a decision needs to be made, the person is unconscious or barely conscious as result of an accident.
Since 2020 the Department of Health and Social Care has been working on the detail of a legal framework to protect those in our community who may lack capacity, this has been formed through public consultation to gather views and opinions and has now become the draft Bill.
Three important factors were considered during the consultation process, and make the basis for the understanding of capacity within the Bill;
- the starting point is always that a person is presumed to have capacity
- everything done, or decision made, for a person lacking capacity must be done in their best interests
- four reasons are clearly set out as to why a person may be categorised as unable to make a decision; if they are unable comprehend the information relevant to the decision, unable retain that information for the appropriate period, or are unable to “weigh” it or to communicate it.
The draft Bill also introduces lasting powers of attorney, which will allow a person to give someone else the ability to make decisions in respect of their health and welfare, as well as property and financial affairs matters should they lose the capacity to make those decisions themselves.
The Minister for Health and Social Care, Lawrie Hooper MHK, said;
‘It has been a long standing intention of the Department to introduce legislation to improve and modernise the safeguards for those who may lack capacity and those involved in their lives. It is a positive step towards modernising our health and social care system, and importantly the Bill outlines that someone may have capacity for some decisions, but not others – there is not a blanket decision on capacity.’
The core policies proposed draw inspiration from the Mental Capacity Act 2005 in England and Wales and from legislation in other neighbouring jurisdictions.
