The Law Society strongly supports the mental capacity bill. We believe that legislation is vital to help protect the rights of those who lack mental capacity, and provide a statutory framework for decision making.
The Law Society absolutely opposes euthanasia, but believes the current law must be improved to protect the rights of vulnerable people.
We support the inclusion of advance decisions or "living wills" in the bill. This will allow an adult with capacity to refuse specific medical treatments if they lose capacity in the future, thus enabling the exercise of a right of choice and control over one's own life and body.
We believe that the current absence of any mental capacity legislation means that the rights of vulnerable people are unprotected and often over-ridden, ignored or abused.
An advance decision is an important mechanism that people can use, if they wish to do so, to inform medical professionals about the type of treatment they do not want to receive.
No one can ask for, and be given, unlawful procedures and nothing in this bill would permit any form of euthanasia. The law relating to murder, manslaughter or assisting suicide is therefore unchanged.
We also support the introduction of "lasting powers of attorney", which will allow an individual to plan for their future by authorising a person of their choice to make decisions regarding their finances or health care.
Decisions about the carrying out, or continuation of, life-sustaining treatment can only be made if the donor has included a specific and clear statement to this effect in the document.
The bill also makes clear that if a doctor is in any doubt about whether withholding treatment is in the best interests of the patient, they must provide treatment while seeking advice from the court.
The bill provides protection against liability for certain acts done in connection with the care or treatment of a person who lacks capacity.
Professionals and carers will not incur civil or criminal liability if reasonable steps are taken to establish whether the person lacks capacity and the action taken is in the person's best interests.
The Law Society believes it is important to provide protection for professionals and carers making day-to-day decisions for people who lack capacity, such as washing, dressing and arranging services. However, we are concerned that the scope of this power is too wide.
The bill permits the detention and treatment of an incapacitated person in his/her best interests. This includes using restraint, whether or not the incapacitated person resists, if this is necessary to prevent harm and is proportionate to the likelihood of the incapacitated person suffering harm and the seriousness of that harm.
This would authorise the use of force to make an informal admission to hospital of a person who lacks capacity, therefore depriving them of the procedural safeguards which apply under the Mental Health Act 1983.
A recent court decision makes clear that a person who lacks capacity to consent to his/her admission to hospital, but who does not object, can nevertheless be 'deprived of his liberty' within the meaning of Article 5(1) of the European Convention on Human Rights (right to liberty and security).
Moreover, the legal framework provided by the common law doctrine of "necessity" and "best interests" contains inadequate procedural safeguards to protect such patients.
The Law Society believes that individuals should only be detained and deprived of their liberty under a properly regulated system which guarantees the safeguards lacking at common law.
This could apply to incapacitated informal patients in hospital and people living in nursing homes or care homes whose particular circumstances may amount to a deprivation of liberty.
· Edward Nally is president of the Law Society