I was so delighted that I was able to present the Projet de Loi to the States Assembly in April 2020. It has taken many years to get there and a lot of hard work. This is one of things I am most proud of having achieved as a People’s Deputy as it will make such a difference to the most vulnerable people in our society.
Sir, I am delighted to be able to present this Projet to States Members today for approval. It has been a difficult journey getting here, from the original debate back in the previous term, through the pressure on resources from Brexit through to today at the height of a public health emergency. Indeed, it is probably fair to say that if there is a time to be bringing in this Law it is now.
I don’t intend to speak for very long on what is set out in the legislation as I did cover this off at length when I spoke in the Assembly back in February. However, I do appreciate that other matters have been in the forefront of people’s minds since then and this is one of the most important pieces of legislation to be brought this term so will just mention a few key points.
The principal purpose of the capacity law is to empower people to make their own decisions wherever possible, to allow them to plan for the future and, if they lack capacity, to ensure that decisions made on their behalf respect their basic rights and freedoms.
A key principle is that a person is assumed to have capacity unless it is established they lack capacity. Someone is considered to lack capacity if they are unable to make a decision on a matter and that inability to do so is due to an impairment of, or disturbance in the functioning of, the mind or brain, whether permanent or temporary.
A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success and it should not merely be because they make an unwise decision. When it has been proven that someone lacks capacity any decisions taken on their behalf must be made in that person’s best interests and before a decision is made consideration must be given as to whether the purpose for which a decision is needed can be effectively achieved in a way that is less restrictive of their rights and freedom of action.
The legislation sets out what people need to consider in terms of someone’s inability to make decisions and what is in that person’s best interests.
The Law sets out the powers of and applications to the Court and Tribunal in terms of determining whether someone lacks capacity and making decisions for someone who it is established lacks capacity.
Lasting Powers of Attorney, or LPAs, Advanced Decisions to Refuse Treatment and Advanced Care Plans are all defined, as well as how they can be made and how they should be used.
A new role of Independent Capacity Representative is introduced enabling individuals who lack capacity, and who are without the support of family and friends, to be represented when decisions are taken that affect them and it will be a duty of the States to ensure where that is the case that an ICR is appointed.
The law introduces a Protective Authorisation Scheme to safeguard the interests of individuals who no longer have capacity to consent to the arrangements for their care, which comprise significant restrictions of their personal rights, amounting to a deprivation of their liberty and sets out the processes to be followed, how they can be varied, renewed, ended and challenged.
Finally it is important to point out that the Law will not commence immediately, but later by Ordinance once full guidelines and training are provided to all interested parties as well as clear and concise information for the public.