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Rosie Winterton, the minister responsible for mental incapacity ...
Rosie Winterton, the minister responsible for mental incapacity

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

and Wales.

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:

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