The proposed act is given a first reading in the House of Commons where copies of it are passed around are members vote on whether they wish to consider the bill further, but no debate takes place.
At the second stage the members of the house get the chance to debate the bill; this is called the second reading and is where the bill becomes more of a public project due to different pressure groups bringing it to people's attention. The members will vote again as the bill will need a majority percentage in order for it to continue any further.
The next stage involves a committee made up of proportionate members of the house, with a majority given to the party that is in power, along with any members that may specialise in the acts particular area. The committee is formed to go through the act line by line in order to make amendments to it.
The report stage ensures that the amendments are accepted by the house in which the bill started by taking another vote to see whether these will be accepted. This is followed by the formality of the third reading which will only go under more debate if six members request it.
The bill will then be passed to the House of Lords if it started life in the House of Commons (and vice-versa), to be discussed and debated. However, if the bill is rejected by the House of Lords, it may become an act if the commons pass it for a second time. This is due to the fact that the House of Lords is not an elected body and therefore shouldn't be an opposition to a democratically voted body, and should only, really be used to amend such bills.
Following the agreement of both houses over the bill, it shall then be given royal assent to become an Act of Parliament and will usually come into effect at midnight of the same day, unless the act itself states a commencement order. This royal assent is usually given in the form of Letters Patent which simply let the ministers know that a royal assent has been given. Alternatively, a royal commission can be signed to command Royal Commissioners to let both parties know that the assent has been given.
The Mental Health Act 1983 is about detaining, restraining and treating patients who have become vulnerable and are therefore unable to make their own decisions. The two thousand and five act sets out (alongside the 1983 act) to show clearly who in the community can and should make the required decisions on the behalf of someone else, as well as showing in what circumstances these decisions should be made. It provides a set test for mental capacity and gives guidelines to how the decision must be made in the interest of another.
The provisions of the Act apply to those aged over sixteen whose mental capacity is damaged. This includes people who suffer from dementia, learning disabilities, physical illnesses, brain injuries, strokes or substance misuse. The decisions required will involve the individual with the disability as much as is possible, leaving them at the heart of any final conclusion. It is intended primarily to give support to those who have difficulty making decisions for themselves or who, may wish to plan ahead in the unfortunate event that they become unable to make choices for themselves in the future.
The five core principles of the act are intended to make it clearer for professionals in the field, to understand exactly what is required of them and to shield them from litigation.
It lays out how everyone is automatically assumed to have the capacity to make their own decisions and that they should be offered as much help as is available before anyone comes to the conclusion that they do lack this capacity. Also, the individual's best interests must be taken into account and any decisions taken on their behalf must not benefit anybody other than themselves. This comes into conjunction with the individual's right to retain any eccentricities that may be described as peculiar unless they are proved to be incapable; the decision would still be valid. Lastly, the intervention that is pursued against a person should restrict their human rights and basic freedoms as little as possible.
The Act sets out a single clear test for assessing if a person is lacking capacity to make a specific decision at any particular time, as a person cannot be determined incapable purely as a result of a particular medical condition; this type of examination which involves two questions is known as the “decision specific test” and is as follows:
- Does the person have impairment of the mind, or brain or a disturbance of mental function?
- If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
These two questions basically show that to have capacity in your own decision making you must:
- Understand the information relevant to the decision
- Retain the information
- Use that information as part of the process of making the decision
- Communicate your decision either by talking, signing or by other means
This provides a checklist of factors that decision makers must follow, although a person can put his or her feelings into a statement if they so wish, the decision maker must then take this into consideration. Carers and family members must also have a right to be consulted when a decision is made.
