The Capacity Bill 2022 has completed its passage through the House of Keys and Legislative Council.
Subject to it receiving Royal Assent, the final process for the proposed law to pass through, it is anticipated to come into effect in the coming spring.
The law will allow someone to make important life decisions on behalf of an individual who is unable to make or communicate these decisions.
The Capacity Bill’s explanatory notes say: ‘A person’s capacity to make some decisions may be impaired for a variety of reasons, such as having significant learning difficulties or mental health problems, suffering a stroke or head injuries, or the onset of dementia.’
It adds: ‘It is essential that the provision of services for people who may have lost the capacity to make decisions for themselves are underpinned with a modern and clear legal framework which safeguards the individual’s rights, dignity and wellbeing.’
A spokesperson for the Department of Health and Social Care said: ‘The Capacity Bill is an important piece of social legislation that will overhaul this area of health and social care and will drastically improve the lives of so many.’
timetable
‘The department has been keen for some time to introduce a Capacity Bill, most notably of late preparations for Brexit and the response to the Covid pandemic have impacted on the timetable.
‘The department in now bringing this Bill forward shows its firm commitment to this vital piece of legislation.’
The Bill outlines the following key principles.
The first is it sets out the overarching concept of mental capacity, and defines what is meant by ‘a person who lacks capacity.
The bill prescribes the test for establishing whether a person is unable to make a decision, and specifies what is to be considered in determining what is in a person’s best interests.
It also creates a new form of power of attorney.
A power of attorney, which is the current legislation, covers decisions about financial affairs and is valid only while the individual has mental capacity.
A lasting power of attorney, which will be introduced as part of the new law, covers decisions about both financial affairs and health and care, and comes into effect if an individual loses mental capacity.
Finally, the Bill provides a statutory framework to advance decisions about future healthcare, in the event of a loss of capacity and creates the criminal offences of the ill-treatment or wilful neglect of a person lacking capacity.