I’ve talked about the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities quite a few times on this blog.
There are things I like about the MCA, but I think that it is fatally ambiguous between when you’re making a decision for someone because you don’t know what they want and when you’re making a decision for someone despite what they want. Those two things are not the same. Recent practice in the Court of Protection is tending to soften this, but only sometimes and only a bit.
There are things I like about the UNCRPD, but many interpretations of it are fatally ambiguous between doing what the person tells you (however that is communicated) and guessing what the person might want if you could understand them. These two things are not the same either.
So I thought about what an Act that drew some bright lines in these places would look like. I’m still not convinced decision-making legislation is a good idea right now, or maybe ever, and I am definitely not saying that anything like this should be enacted, but it’s an interesting thought experiment.
Thanks to the incomparable Laura Pritchard-Jones for feedback on an earlier version. I’d love more feedback on this. All opinions welcome.
I present to you:
The Be Clear About Exactly What You’re Doing Act 2017
1. Any person (R) proposing to act on behalf of another person (P) must make every possible effort to determine what P currently wishes to be done, or not done, in connection with that action.
2. For the purposes of this Act, P’s currently expressed wishes must be distinguished from their wishes more generally.
(1) P’s currently expressed wishes may include:
(a) Anything P communicates in any language, including sign language.
(b) Anything P communicates by other means, such as the use of pictures.
(c) Anything that P clearly expresses in behaviour.
(2) P’s currently expressed wishes do not include:
(a) Anything P might have expressed in the past, before R proposed the action on their behalf.
(b) Anything P might have expressed on another occasion that any R proposed to act on their behalf.
(c) Any conclusions drawn from what R believes P would want, if they could communicate, understand the question, or retain, use and weigh the relevant information.
(d) Any conclusions drawn from what R believes best accords with P’s other wishes, beliefs, values, and their pattern of life.
3. An action can be taken against P’s currently expressed wishes if, and only if, the following four conditions are met.
(1) P has a false belief that can be demonstrated to be false.
(2) P faces imminent and severe danger because of that false belief.
(a) ‘Imminent’ means that the danger is extremely likely and cannot be averted unless action is taken promptly.
(b) ‘Severe’ means that if the threat posed by the danger occurs, then it will be both serious and irreversible for P.
(3) The danger cannot be averted without acting against P’s expressed wishes.
(4) The action against P’s wishes is proportionate, taking into account P’s other wishes, beliefs, values, and their pattern of life.
4. If, despite R making every possible effort, P’s currently expressed wishes about a matter cannot be determined, then any action taken on their behalf must be taken in their best interests.
(1) Any action made in P’s best interests must be proportionate, taking into account P’s other wishes, beliefs, values, and their pattern of life.
(2) Any action made in P’s best interests must take into account any previous statement that P made about what they would want in the current circumstances.
(3) Any R acting for a P who cannot or will not express their wishes must:
(a) encourage and support P to express their wishes,
(b) consider whether P will be able to express wishes on this matter in the future and, if so, attempt not to foreclose P’s options at that later date, and
(c) so far as is possible, encourage and enable P to participate in the act taken on their behalf.
5. Any R acting against the currently expressed wishes of P or for a P who cannot or will not currently express their wishes must, so far as is possible, consult and take into account the views of the following people with regard to the proposed action:
(1) anyone named by P as someone to be consulted on the matter in question or on matters of that kind,
(2) anyone engaged in caring for P or interested in their welfare,
(3) any donee of a lasting power of attorney, advocate, or representative appointed by P, and
(4) any deputy appointed for P by the court.