Capacity Bill Consultation

The Department of Health and Social Care is developing a new legislation framework to improve and modernise the safeguards for those who may lack capacity and those involved in their lives.

Capacity issues potentially affect everyone. A person’s capacity to make decisions may be impaired for a variety of reasons, such as having a significant learning disability or learning difficulties, mental health problems, suffering a stroke or head injury, or the onset of dementia.

It is essential that services for people who may have lost capacity to make decisions for themselves are underpinned by a modern and legal framework which is clear and safeguards their individual rights, dignity and wellbeing.

What we are doing now

Hard to Reach Consultation: Lets Talk About Choices Campaign – April 2021

We realise that during the circuit breaker lockdown it is not practicable to reach out and talk to people in the ways we normally would. In response we have developed a guide to promote conversations about capacity. We would like to hear about these conversations, and we have asked people to share these with us to help us develop and implement capacity legislation on the Isle of Man. The campaign information guide and the response form are both available on this page along with an easy read introduction to capacity (downloadable documents).

If you wish to join the conversation, please share your response forms with us by 30 April 2021 by emailing the form to Georgina.Jones@gov.im

We will publish a Consultation report in May 2021 which will include the outcome of the ‘Let’s Talk About Choices’ campaign and the more formal legislation consultation.

The outcome Report will look to establish which views are held most strongly and consistently, with any relevant talking points highlighted as appropriate.

Our Campaign Aims

To engage with people who are unable to contribute to the main consultation on the Capacity Bill. This is important because of the stake they have in the legislation, and the unique perspective they can provide.
To confirm that the policy principles incorporated in the current proposed Capacity Bill, the current bill. For example, based on the initial policy consultation it is understood that people generally want to make their own decisions, however most of those who contributed to the policy consultation were carers or health and social care professionals. This consultation seeks to check these principles with people who sometimes struggle to make their own decisions.
To promote and encourage the involvement of people who are often underrepresented in consultation more generally; not only as key stakeholders, but as citizens who are valued.

What we have done

Capacity Bill Consultation: 25 February – 8 April 2021

We have consulted on the draft Capacity Bill, this closed for comment on the 8 April 2021. The consultation itself can be viewed online our online consultation hub. We will publish a Consultation report during May 2021. The Bill will then be subject to further review and refinement before being referred to the Council of Ministers and then to Tynwald for political scrutiny and review in late 2021, this parliamentary process can take six months to complete.

What is proposed within the Capacity Bill

The Capacity Bill and the accompanying Code of Practice (which the Department will, in due course, be consulting on) is the first stage in the development of the Island’s Capacity laws, seeking to reform and put on a statutory footing, the following:

the over-arching principles of capacity, starting with the presumption that a person has capacity
defining what we mean by 'a person who lacks capacity'
the test for establishing whether a person is unable to make a decision about a matter
what must and must not be considered for the purposes of determining what is in a person’s best interests
the creation of lasting powers of attorney, to replace the existing enduring powers of attorney
court appointments to act on behalf of person’s who have lost the capacity to make decisions
the ability for people to make decisions in advance about what medical and healthcare they wish to refuse in the future, in case they lose the capacity to make those decisions (advance decisions)
decisions of a very personal nature that cannot be taken on behalf of another person (excluded decisions)
the ill-treatment or neglect of a person lacking capacity and
research on, or in relation to, a person who lacks capacity

Capacity Policy Principles – Consultation (August – October 2020)

In the Autumn 2020, the Department of Health and Social Care ('the Department') ran a 6-week public consultation, the purpose of which was to seek views and, where relevant, evidence to support those views on the policies that would shape the Island’s new capacity laws.

A total of 154 responses were received. Overall, there was strong support of the need for a modern and clear legal framework for people who may have lost the capacity to make decisions for themselves, and a general consensus as to what the overarching capacity principles should, in the new Capacity Act, be.

Having carefully considered and analysed the responses that were received, the Department on 28 January 2021 published on the Government’s Consultation webpage the 'Summary of Consultation Responses on Capacity Policy Principles'.

A copy of that Summary of Responses can be accessed via the consultation hub.