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Capacity Bill Consultation

The Department of Health and Social Care ('the Department') is developing a new legislation framework to improve and modernise the safeguards for those who may lack the capacity to make decisions for themselves 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 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 legal framework which is clear and safeguards their individual rights, dignity and wellbeing.

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:

  1. the overarching principles of capacity, starting with the presumption that a person has capacity;
  2. defining what we mean by 'a person who lacks capacity';
  3. the test for establishing whether a person is unable to make a decision about a matter;
  4. what must and must not be considered for the purposes of determining what is in a person’s best interests;
  5. the creation of lasting powers of attorney, to replace the existing enduring powers of attorney;
  6. court appointments, including the court’s powers to appoint delegates, to act on behalf of a person who has lost the capacity to make decisions;
  7. 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);
  8. decisions of a very personal nature that cannot be taken on behalf of another person (excluded decisions);
  9. the ill-treatment or neglect of a person lacking capacity; and
  10. research on, or in relation to, a person who lacks capacity.

What we are doing now

The Department welcomed all feedback and considered each comment made in response to the consultation. As a result of which, a number of amendments will be made to the draft Bill.

Once the Bill has been finalised, it will be submitted for approval to the new Administration, with the aim to introduce it into the Branches of Tynwald early in that Administration commencing October 2021.

The Department is currently developing the policy to progress the Code of Practice.  A public consultation will be undertaken to assist with the development of the Code to ensure professional stakeholders and the Island’s community has the opportunity to comment.

What we have done

Capacity Policy Principles – Consultation (August – October 2020)

In the Autumn of 2020, the Department ran an 8 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 the 'Summary of Consultation Responses on Capacity Policy Principles'.

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

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 received a total of 69 responses. Of those responses, 60 were via the online consultation hub and a further 9 were received separately by email.

On the whole there was strong support confirming the need for a clear legal framework with robust safeguards for people who may have lost the capacity to make decisions for themselves.

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

In addition, a further consultation ran concurrently to the general consultation, that of the ‘Hard to Reach’ groups – who are those people unlikely to be able to contribute to the general consultation in the usual way, without additional support. A supplementary report addressing the outcomes of the ‘Hard to Reach’ consultation has been included at Appendix 2 of the report.

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