The Law Commission's report on mental incapacity recommends that there should be a single comprehensive piece of legislation for people who lack capacity.

A draft Mental Incapacity Bill appears as an appendix.

The report, published on 1 March, is the culmination of a five-year study.

The commission acknowledg es that the impetus for the review came from the Law Society.The two concepts central to the proposed decision-making jurisdiction are capacity and best interests.

People should only be regarded as without capacity if at the material time they are unable by reason of mental disability to make a decision on the matter in question, or unable to communicate a decision for any reason.

Anything done for persons without capacity should be in their best interests.

This involves taking into account their ascertainable past and present wishes; the need to permit and encourage them to participate in the decision-making process; the views of relatives and carers; and endeavouring to achieve the objective in a manner least restrictive of their freedom of action.The commission recommends that it should be lawful for anyone to do anything (subject to very few exceptions) for the personal welfare or health care and in the best interests of a person who is, or is reasonably believed to be, without capacity, provided it is reasonable in all the circumstances for it to be done by the person who does it.

It also proposes that it should be a criminal offence for any carer, manager or attorney to ill-treat or wilfully neglect a person in relation to whom he or she has powers under the new legislation.

Anyone guilty of such an offence could - in addition to being fined - be imprisoned for up to six months on summary conviction, and up to two years on conviction on indictment.The House of Lords select committee on medical ethics, which reported in February 1994, commended the development of advance directives but concluded that legislation was unnecessary.

Instead, it recommended the development of a code of practice which the British Medical Association is about to publish.

By contrast, the Law Commission proposes specific legislation on advance refusals made by competent adults which are intended to have effect at any future time when they are without capacity to give or refuse consent.

Health care providers would not incur liability for the consequences of withholding any treatment or procedure if they had reasonable grounds for believing that an advance refusal applied.The commission does not propose any prescribed form but suggests that, in the absence of any indication to the contrary, it should be presumed that an advance refusal was validly made if it is in writing, signed and witnessed.

An advance refusal could not preclude the provision of basic care; namely, care to maintain bodily cleanliness and alleviate severe pain, as well as the provision of direct oral nutrition and hydration.The Enduring Powers of Attorney Act 1985 should be repealed, and instead it should be possible to create a continuing power of attorney (CPA) in which the attorney has the authority to make and implement any decision which the donor is without capacity to make.

CPAs might extend to matters relating to the donor's personal welfare, health care (including whether to accept or refuse medical treatment), and property and affairs including the conduct of legal proceedings.

The CPA would be in a form prescribed by the Lord Chancellor.There would be a new registration procedure, essentially for the purpose of bringing the document into the public domain and establishing its formal validity.

The attorney would have no authority to act under a CPA until it had been registered in the prescribed manner.

The registration authority would be a purely administrative body - probably the Public Trust Office.

Once the power had been registered the registration authority wou ld notify a maximum of two people, excluding the attorney(s), named in the CPA.

Any disputes about the validity of the power would be resolved by the new Court of Protection, which would have power to appoint a substitute or additional attorney.The commission recommends that the existing Court of Protection be abolished and a new superior court of record, also called the Court of Protection, be established to make decisions or resolve disputes about the personal welfare, finances and health care of persons without capacity.

The new court would have a central registry in London, but would sit anywhere in England and Wales designated by the Lord Chancellor.

The new Court of Protection would be made up of nominated district judges, circuit judges and judges of the Chancery and Family Divisions, one of whom would be designated as the senior judge.

It would be able to make declarations, one-off orders and, where appropriate, appoint a manager with substitute decision-making powers in relation to a person without capacity.The report recommends new powers and procedures to protect vulnerable persons at risk.

Local social services would have a duty to investigate any case in which they believed that a vulnerable person was suffering or was likely to suffer significant harm or serious exploitation.

The duty would be backed up by powers to enter premises and apply to the court for an assessment order or a temporary protection order.-- Law Commission's report on mental incapacity (Law Com No.231, HMSO, £21.85).