Draft Capacity and Self-Determination Law

A draft law, replacing our customary laws on curatorship, and making other much needed improvements, is now open for consultation, with public meetings taking place this month.

The aim of the new Capacity and Self-Determination Law is to safeguard the dignity and wellbeing of people who may not have the capacity to make decisions for themselves, and to enable those who have not yet lost capacity to plan for the future. 

If implemented, the new Law will create a scheme of legal principles and safeguards governing decisions made by and on behalf of persons who lack capacity to make such decisions themselves. A person’s capacity to make decisions may be impaired, whether temporarily or permanently, by mental health problems, a stroke or head injuries or dementia, but the fundamental premise is that we are all assumed to have capacity unless otherwise shown, and cannot be treated as being unable to make a decision unless all practicable steps to assist have been taken unsuccessfully. It is made clear that all acts done or decisions made on behalf of a person who lacks capacity must be done or made in that person’s best interests.

New provisions would be introduced to entitle anyone aged 16 years or over with capacity to make advance decisions to refuse treatment. It would also be possible to grant a lasting power of attorney providing for matters of health and personal welfare, or property and affairs, giving people the comfort of knowing that they will have a say in their care and treatment where they are not able to express their wishes at the time.

Anyone wishing to comment on the draft Law has until 13 November 2015 to do so. Please click here for information on how to comment.

If you have any queries please do not hesitate to get in touch with Fiona Lilleyman.