Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department.

  • Great Britain. Lord Chancellor's Department.
Date:
1997
Catalogue details

Licence: Open Government Licence

Credit: Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department. Source: Wellcome Collection.

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    The Key Principles Capacity, Best Interests, and the General Authority to Act Reasonably The Government supports the principles behind the Law Commission’s proposals in this area, but seeks views in this chapter, on whether the proposed definitions are practical and workable. THE TEST OF CAPACITY The Law Commission recommended a new statutory definition of incapacity’. Presumption against lack of capacity The Law Commission recommended that there be a presumption against lack of capacity. This conforms with current principles of common law. It also supports the general principle that there should be minimal intervention in the affairs of individuals unless there is a demonstrable need to do so. This is a common sense approach, and the Government notes the wide support the Law Commission received for this on consultation. The Government accepts this recommendation in principle. Determining whether an individual lacks capacity The Law Commission considered a number of possible approaches to the definition of capacity, but favoured the “functional approach”, which is currently the main method used in common law. This received overwhelming support on consultation. This approach focuses on the decision itself and the capability of the person concerned to understand at the time it is made the nature of the decision required and its implications. This approach is thus very specific and avoids generalisations which may involve unnecessary intrusion into the affairs of the individual. For example, a person may be able to decide that they want to have contact with a particular relative, but may not be able to understand the nature of a particular financial contract on which a decision is needed. The functional approach would