Literature Review on Provision of Appropriate and Accessible ...

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• The Scheme of Mental Capacity Bill 2008 does not apply to
consent to have sexual relations. [52]
• Criticism <strong>Literature</strong> of the <strong>Review</strong> Law Reform on Provision Commission of Appropriate Bill centred and Accessible on: the
Support to People with an Intellectual Disability who are
proposed definition of capacity being too open-ended; the lack
Experiencing Crisis Pregnancy
of provision relating to advocacy; that there should be inclusion
of a special requirement requiring medical professionals to
include family members or carers of a person lacking capacity in
treatment decisions; and a requirement that the person lacking
capacity should be consulted regarding their choice of personal
guardian (Donnelly, 2008).
International legislation governing capacity
• In England and Wales, the corresponding legislation is the Mental
Capacity Act, 2005, which provides a statutory framework for
substitute decision-making for those who lack capacity. Many of
the provisions in the Scheme of Mental Capacity Bill, 2008, are
similar to the provisions in this legislation.
• Good practice provisions of the UK’s Mental Capacity Act 2005
were identified as follows:
- It adopts a functional approach, where capacity is decisionspecific
and time-specific rather than global or permanent;
the implication is that before any declaration of incapacity,
consideration needs to be given as to whether it would be
possible either to improve the person’s relevant functional
abilities and/or to simplify or otherwise amend the situation
to improve the person’s capacity (Murphy and Clare, 2003).
- It introduces a legal duty to consult with others involved in
caring for the person or interested in his/her welfare before
carrying out acts in relation to a person who lacks capacity.
- It requires steps to be taken to develop capacity and imports
a right to comprehensible information (S. 1 (3); S 3 (2)).
- Under the Act, a person is required to make an assessment
of capacity before carrying out any care or treatment. The
52 Head 20(e).