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Consultation Paper On The Draft Mental Capacity Bill
Posted on Wednesday, August 15, 2007 - 06:00 PM

The Ministry of Community Development, Youth and Sports (MCYS) would like to consult the public on the draft Mental Capacity Bill. The Bill seeks to help our ageing population plan and prepare in advance for a time in future when some may lose the capacity to make decisions for themselves. This is becoming an increasing concern with the rise in more singles and couples without children or whose children are abroad, and the consequent rise in cases of dementia as our population ages. The Bill also enables parents of children with intellectual disabilities to make provisions for their children's welfare.

What the Bill is About

The Bill
* enables individuals to voluntarily plan ahead for a time when they may lose their capacity to decide or act for themselves. It allows them to appoint a proxy decision maker known as a donee to act for them.
* provides a legal framework for assisting, supporting and protecting people who lack mental capacity.
* makes it clear who can make decisions or act for people who lack capacity, in which situations the decision or action can be made, and how people should go about this.
* takes into account that mental capacity is time and decision-specific.

Who the Bill Covers

The Bill covers individuals who wish to voluntarily plan in advance for a time when they may lack mental capacity. Individuals who may lack mental capacity may include:
* adults (of or over 21 years of age) who are suffering from dementia, intellectual disabilities, brain damage, and mental illness; and
* adults and children with intellectual disabilities.

What the Bill will Do

The Bill will:
- empower adults to plan in advance for a time when they may lack capacity
- give a choice by allowing people to appoint those they trust to take decisions for them if they should lose capacity
- protect those who lack capacity

The Bill will empower people to voluntarily plan in advance for decisions on their welfare. This can be any type of decision, whether it is an important life-changing decision on finances or healthcare, or just routine day-to-day matters.

How It Will Be Done

The Bill offers a legal framework for:
* key principles
* proxy decision-makers
* safeguards to protect the incapacitated
* a new Office of Public Guardian

The Bill provides key principles which apply to making decisions on behalf of those who lack mental capacity to do so. It stipulates that all acts and decisions made on behalf of those with mental incapacity must be made in their best interest.

The Bill sets out a clear test for assessing whether a person lacks capacity. It focuses on the particular time when a decision has to be made and on the particular matter to which the decision relates. A lack of capacity cannot be established merely by reference to a person's age, appearance, or unjustified assumptions about capacity based on the person's condition or behaviour.

There will be an accompanying Code of Practice to help in the implementation of the provisions under the Bill.

Proxy decision-makers

An individual can decide to appoint someone s/he trusts to manage his/her affairs through a Lasting Power of Attorney (LPA). This is a new statutory form. The person that individuals can choose to manage their affairs on their behalf is known as a donee, and can be a family member, relative or a trusted friend.

The Bill will also allow parents of intellectually disabled children to make provisions for their children when they themselves become mentally incapacitated or when they pass on. The parents can apply to the Court to appoint a deputy for their child. They can also ask the Court to appoint successor deputies, to ensure a succession pathway for the care of the person with intellectual disability.

Individuals may choose more than one person to act on their behalf. Individuals may make a Lasting Power of Attorney or request the appointment of a deputy only after the Act is implemented.

Safeguards

The Bill recognises that every individual has the right to make his own decisions and must be presumed to have capacity to do so unless shown otherwise.

The Bill operates on the principle of best interest. Decisions made must be in the best interest of a person who is mentally incapacitated.

In order to protect persons who lack capacity, wilful neglect or ill-treatment of a mentally incapacitated person will be a criminal offence under the Bill.

Excluded Decisions:

Under the Bill, certain decisions cannot be made on behalf of mentally incapacitated person. These "Excluded Decisions" include:
i) Consent to marriage;
ii) Consent to sexual relations;
iii) Consent to a decree of divorce being granted on the basis of three years? separation;
iv) Consent to the making of an adoption order;
v) Register or withdraw objection to Human Organ Transplant/Donation;
vi) Make or revoke an Advance Medical Directive;
vii) Make, amend or revoke a will;
viii) Make or revoke a CPF nomination.

Office of the Public Guardian

A new Office of the Public Guardian (OPG) will be set up. It will receive and investigate complaints made against proxy decision-makers.

Why the Bill is Necessary

At present, the Mental Disorders and Treatment Act (MDTA) Part I provides for assistance and support to be given to persons with "unsound mind" who are incapable of managing their own affairs. Under the MDTA, a Committee of Persons or Committee of Estate may be appointed by the court to manage their personal welfare and property decisions. But this can be done only after the person has lost his or her mental capacity. There is not yet an opportunity for people to plan in advance for a time in future when they may lose capacity.

Next Steps

MCYS and partner agencies, Ministry of Law and Ministry of Health, will hold dialogue sessions with stakeholder groups. These include the voluntary welfare organisations, their clients and the families, as well as the legal and medical fraternities.

All comments received from the public and stakeholders will be reviewed thoroughly and, where appropriate, will be incorporated into the Bill.

MINISTRY OF COMMUNITY DEVELOPMENT, YOUTH AND SPORTS
15 August 2007

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