News and Insights

Do you ever give thought to the thought of giving thought?

Does that even make sense? Most of us take for granted our ability to think clearly, make decisions and even judge the quality of an opening line to an article! So, what happens if one day you come to lose that ability?

There is any number of reasons why a person’s capacity may become impaired, including mental health problems, stroke, injury or addiction. It’s easy to imagine how quickly things can change for a person and their family when this happens. Accidents and dementia are probably the most common triggers and the latter is a growing concern.

Jersey’s elderly population is expected to double in the next 30 years. With this, the number of people suffering from dementia will only increase. Given this reality, it is positive news that Jersey is updating its out-dated mental health laws to match modern needs.

Where do things stand right now?

Mental health issues have the potential to affect us all (whether directly or indirectly). However, right now there is no specific Jersey legislation dedicated to addressing and resolving all the issues arising when a person loses the capacity to make their own decisions.

That is now set to change under a new Capacity and Self-Determination (Jersey) Law. A draft, which resembles the UK’s Mental Capacity Act 2005, was sent out for public consultation towards the end of 2015. This will be completely new to Jersey when it comes into force, which we expect to be soon.

Why is the new law being introduced?

Carers and professionals do not currently have enough clarity as to when a person should be regarded as lacking mental capacity. To put it a better way, there are no clear rules to protect the autonomy of individuals with questionable capacity. The new law will shift the focus from taking power away from an individual towards a more modern approach. It will be aimed at empowering people to make their own decisions whenever possible and encouraging them to plan ahead in case they are unable to make decisions in the future.

What are the key changes?

In order to make this shift, some major changes will be brought in under the new law. There will be:

• New guiding principles such as a default position presuming a person has capacity.

• A test for mental capacity which will focus on the ability to make specific decisions.

• A process to ensure decisions made for a person lacking capacity are taken in their best interests.

• Provision to enable people to make, in advance, decisions to refuse treatment.

• The ability to make lasting powers of attorney so that people can appoint someone to look after their physical wellbeing and financial affairs.

• Safeguards to ensure people are only deprived of their liberty in accordance with their human rights.

• New offences to deal with neglect and ill-treatment.

Why should you care?

These changes will affect anyone working with or caring for an adult who lacks capacity to make specific decisions. They will need to comply with the new law when making decisions on that person’s behalf. However, for the majority of us, the most interesting change is probably the introduction of provision for lasting powers of attorney.

If you grant someone a power of attorney, you give them authority to handle your affairs. Under current law, it automatically becomes void should you lose capacity. The new law will allow certain powers of attorney to survive this development. Real life examples underlining why this matters to us all are the tragic skiing accidents suffered by F1 racing driver Michael Schumacher and the one time Goldman Sachs VP, Dutch Prince Johan Friso. An accident can occur when least expected. A lasting power of attorney has the potential to alleviate its often costly and stressful consequences, especially as medical advances blur the boundary between life and death.

What happens next?

The new law is in the process of being finalised. We anticipate that it (together with a new Mental Health Law) will be lodged with the States before the end of March this year. If it is passed by the States Assembly we can expect both new laws to be brought into force in April 2018.

It is clear that the States is committed to this project by investing both in this new legislation and in the Island’s mental health services generally. This is without doubt the right approach. Jersey cannot carry on muddling through with out of date mental health legislation and systems. We can now look forward to arrangements that reflect modern thinking about human rights compatible protection for those who encounter mental capacity problems.