Lawyers' cautious welcome for mental incapacity Bill

Mental health lawyers have given a cautious welcome to the government's draft mental incapacity Bill, which will give patients the right to have 'living wills'.

The draft Bill means that people who fear that they may become mentally incapacitated, such as elderly people who may later suffer from senile dementia, will be able to appoint friends or relatives with the legal power to refuse life-sustaining treatments.

Mentally capable adults will be able to draw up documents in which they refuse certain types of medical treatment, and if their mental health later deteriorates doctors will have to take these wishes into consideration.

The draft Bill also proposes that abuse of someone who lacks capacity should be made a criminal offence, and will create judicial and administrative bodies for mental capacity issues.

Law Society President Carolyn Kirby welcomed the draft Bill, and pointed out that solicitors had campaigned for such legislation for ten years.

However, she expressed disappointment that it did not contain measures to require local authorities to protect vulnerable people from abuse.

'A valuable opportunity to increase the protection for older, mentally incapacitated, and other vulnerable people is being lost, and we urge the government to include measures to protect vulnerable people - especially older people in care homes.'

The Mental Health Lawyers Association will not form an official opinion until the finished Bill is published, but, speaking in a personal capacity, its chairman - Kaim Todner partner Richard Charlton - described the draft as a 'mixed bag'.

He said: 'It seems to be a generally positive Bill, and the idea of giving patients more control over what happens in their treatment and affairs is a very good idea.'

Mr Charlton added: 'However, the questions of lucidity and capacity need to be looked at closely, and we need to know what tests will be used for the definitions.'

Victoria MacCallum