policy within the Lord Chancellor's Department has addressed
delegates at the 'Make Up Your Mind' conference organised jointly by
the Law Society and the Royal College of Psychiatrists.
Ms Winterton spoke about the work currently being undertaken by
the department in respect of mental incapacity issues and outlined
the key areas of work the department is involved in while waiting for
parliamentary time to introduce legislation as outlined in the 1999
Policy Statement, 'Making Decisions'. These initiatives are being
taken forward to clarify the decision-making process for those who
are unable to to make decisions for themselves or who cannot
communicate their decisions. Ms Winterton said:
'Making Decisions' sets out what we hope to achieve for some of the
most vulnerable people in our society - a framework that allows them
to make such decisions as they are able, when they are able, with
safeguards that ensure their wishes are fully taken into account.
There must also be robust, flexible guidance on how making decisions
on behalf of someone who lacks mental capacity should be approached.
'We are not standing still. We have an opportunity now to make sure
that legislation will translate into practices and procedures on the
ground that deliver the support necessary for decision makers. Work
to build a strong evidence base for the most effective legislation
and 'reality checked' legislative proposals is ongoing.
'We have looked carefully at what changes could be made, right now,
that would improve the situation of those who cannot make decisions
on their own. Some work has already been done and is ongoing, to make
sure that we are doing all we can for vulnerable people.'
Initiatives being taken forward to help these vulnerable people
include the development of the best practice Guidance on
Decision-Making that went out to public consultation on 10th April
2002, the Court of Protection Regional Pilot Scheme, currently being
evaluated, and a major review of Enduring Power of Attorney
procedures. Additionally, the minister took the opportunity to
highlight the recent establishment, by the department, of a
Consultative Forum on Mental Incapacity. The first meeting of the
forum took place on 11th June and was attended by many organisations
within the area of mental incapacity.
'The recent Consultative Forum, involving many of the voluntary
organisations and stakeholders within the area of mental incapacity,
will help us to focus on what is important to those who are involved
in caring for incapacitated adults.
'The climate is now right to have those difficult discussions - on
end of life issues and care, on substitute decision making and on the
roles and responsibilities of those involved. And of the safeguards
that need to be built into a framework that ensures decisions are
made in a caring and transparent way that secures the best interests
of those involved and provides security for decision makers.
'No longer are these topics regarded as unsuitable for discussion -
the public wants to explore and debate what safeguards are necessary
for those involved and what support and security can be assured in
these difficult situations.
'The forum recognised that there are stages of vulnerability, not
only as capacity diminishes, perhaps with age, but also when patients
find it hard or impossible to see their predicament in a realistic
way. These are the times when the burden of decision making needs to
be shared, in a sensitive way, that empowers and supports the
'There is a need for a 'joined up' approach to the care of vulnerable
adults. And not only how decisions about their care are made, but
also how those decisions translate into actions. For instance, in
deciding where best a vulnerable adult should live, a decision is
worthless if there isn't a space in the appropriate environment. We
will involve, as a priority, colleagues across Government in the work
we are doing, to make sure that changes are realistic and workable,
that decisions are made on all of the information available and with
all of the people involved.
'The Consultative Forum crystalised the collective desire of
stakeholders and organisations to play a real part in driving forward
the changes to be made. It will take forward significant projects and
make changes for the better within the framework of current
legislation and make sure that future legislation meets the needs of
some of the most vulnerable people in our society. It will help us to
build a compelling case for legislation, using real life experiences
that demonstrate the need for legislation and what it must achieve.'
1. The Court of Protection's origins date back to the 1300s.
Working with its administrative body, the Public Guardianship Office,
it oversees the property and financial affairs of more than 20,000
mentally incapacitated people in England and Wales. It looks after
the largest awards of compensation for personal injury, and deals
with about 12,500 applications a year to register enduring powers of
attorney for people beginning to suffer from senile dementia.
2. The Regional Hearing Pilot was launched on 1 October 2001 and
ended on 31 March 2002. It tested whether holding hearings locally
will benefit parties by reducing the time, cost and anxiety involved
in attending court. If found to be successful, the Lord Chancellor
will consider extending the scheme to other court circuits in England
3. The consultation paper containing the guidance leaflets gives
advice on decision-making within the current legal framework and aims
to clarify existing legislation and relevant common law principles.
However, it is anticipated that the guidance leaflets will set the
scene for future legislation in this area by identifying important
issues faced by mentally incapacitated adults and those that care for
them. The consultation paper can be found on the LCD website .
4. Enduring Powers of Attorney allow people who currently have the
capacity to make decisions for themselves, to plan for a time when
they may lose this capacity through either physical or mental
illness. The 'donor' can decide when creating the power whether to
give the 'attorney' immediate control of their financial affairs or
only at the point when the donor becomes mentally incapable. If the
donor chooses the latter option, the attorney has a duty to register
the power with the Public Guardianship Office before using it on the
donor's behalf. The Public Guardianship Office is the administrative
office supporting the Court of Protection with the responsibility for
the day to day administration of its cases. The Public Guardianship
Office has a website which contains more information on this subject: