25 September 2015
Islanders are invited to comment on a new Capacity and Self-Determination Law.
Capacity issues can affect everyone. A person’s capacity to make decisions may be impaired for a variety of reasons. These may include learning difficulties, mental health problems, suffering a stroke, head injuries, dementia or substance misuse.
At present, Jersey does not have specific legislation to protect someone whose decision making has become impaired.
Modern standards in clinical practice
The new Law has been developed with regard both to modern standards in clinical practice and to legislation and case law in Jersey and England and Wales.
The proposed new Law will:
- be underpinned by a set of guiding principles; for example, a person must be assumed to have capacity unless it is established that they lack capacity
- provide a test for assessing capacity, using a two-stage test based on the principles included in Jersey case law and reflected in the Mental Capacity Act 2005, the equivalent Law covering England and Wales
- allow for individuals to plan for the future, when they may not have capacity, including appointing another person to make certain decisions under a Lasting Power of Attorney (LPA) and making a decision to refuse treatment if they should lose capacity in the future
- clarify where restraint can and cannot be used – acts of restraint will only be permitted in specific circumstances described in the Law, for example in order to prevent harm to the person being restrained
- set out a framework for assessing whether a person has the capacity to consent to arrangements made for their treatment and, if not, whether those arrangements would involve a significant restriction on their liberty (such as limiting a person’s access to a place, or controlling/limiting their contact with others)
- create a new offence covering wilful neglect and abuse; this provision will apply to those who live in care homes, are provided with domiciliary care, or have supported living arrangements
Senator Andrew Green MBE, Minister for Health and Social Services said "This new Law will potentially affect us all. It is designed to safeguard the dignity and wellbeing of people who may not have the capacity to make decisions for themselves, as well as enabling everyone to plan for a time when they may lose capacity.
"The Law has been developed in consultation with a range of key stakeholders including GPs, charities, the Law Society, the Courts, HM Prison and front-line health and social care staff. We now want to provide Islanders with an opportunity to comment."
A series of public meetings are taking place at the Town Hall in St Helier to provide an introduction to the proposed draft Law:
- Monday 12 October, 1- 2pm
- Monday 19 October, 12noon- 1pm
- Wednesday 21 October, 6.30- 7.30pm
Commenting on the Capacity and Self-Determination Law