This paper sets out for consultation a pack of leaflets which are intended to provide help and guidance for adults who, due to mental incapacity, need support to make decisions and also for those involved in caring for them. The consultation consists of a pack of six guidance leaflets which are each aimed at a specific audience namely relatives and carers, health care professionals, social care professionals, legal practitioners, people with learning difficulties and adults who wish to plan for future incapacity in England and Wales. There is also a covering statement, which acts as a preface to each leaflet, and which sets out the general principles regarding decision-making on behalf of mentally incapacitated adults and the background to the formation of this guidance.
This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria has been followed. An initial impact assessment indicates that the publication of this guidance is unlikely to lead to additional costs or savings for businesses, charities or the voluntary sector.
Copies of the consultation paper are being sent to the following organisations to which we are very grateful for their help in taking this work forward:
Please send your response by 9 July 2002 to:
Lord Chancellor's Department
Family Policy Division 1
105 Victoria Street
London SW1E 6QT
Tel: 020-7210 0751
Fax: 020-7210 1265
Email: Virginia Gray
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Paper copies of this consultation paper can be obtained from the above address or by phoning 020-7210 0751.
We would welcome any general comments that respondents may have on particular leaflets or the Guidance as a whole.
However, views are particularly sought on the following:
If you have a learning disability, we would particularly like to know what you think about Leaflet 5 such as:
This leaflet is one of a series intended to provide help and guidance, both for adults who need support to make decisions. This may be because of a learning difficulty, brain injury, dementia, mental health problem or any other illness or disability which affects their capacity to make their own decisions, and also for those involved in caring for them.
Other leaflets in this series include:
The Government has accepted the need for changes in the law to improve and clarify the decision making process for people unable to make decisions for themselves because of problems of mental capacity. Making Decisions (published in October 1999) sets out the Government's proposals for law reform. But new legislation takes time.
In the meantime, these guides aim to make the best use of the current law and give examples of good practice, while setting the scene for new legislation. It is intended that the guidance given here will evolve over time, to reflect future changes in law and policy affecting people who lack capacity.
The guidance in this series is informed by the following key principles:
Every adult has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise
Everyone should be encouraged and enabled to make their own decisions, or to participate as fully as possible in decision-making, by being given the help and support they need to make and express their own choices
Individuals must retain the right to make what might be seen as eccentric or unwise decisions - people who need support should not be expected to make 'better' decisions than anyone else
Decisions made on behalf of people without capacity should be made in their best interests, giving priority to achieving what they themselves would have wanted
Decisions made on behalf of someone else should be those which are least restrictive of their basic rights and freedoms
Examples of how these principles can be applied in practice are set out in the leaflets. It is not possible to cover everything, so initial guidance is given with cross-references to more detailed sources of help and advice.
If you have any complaints or comments about the consultation process, you should contact the Lord Chancellor's Department's consultation co-ordinator, Peter Jacob, on 020-7210 8516 or e-mail him at Peter Jacob. Alternatively, you may wish to write to the address below.
Lord Chancellor's Department
54-60 Victoria Street
London SW1E 6QW
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.
Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.
Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.
Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.
Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.