The paramountcy of wishes and feelings – the Isle of Man takes on mental capacity

Reminding us always that it is very helpful to look around outside England & Wales, the Capacity Bill 2022 has completed its legislative passage in the Isle of Man.  It awaits Royal Assent, and, if it receives it, should be coming into effect in the spring of 2023.

As with legislation in other surrounding islands, the legislation draws very heavily on the MCA 2005, but differs in some interesting ways.   Particular points which leapt off the page to this capacity enthusiast were

  • That the ‘unwise decisions’ principle is subtly modified in s.3(5) of the Capacity Bill to provide that “[a] person is not to be treated as unable to make a decision merely because that person makes or may make an unwise ” It still does not mean, though, I would emphasise, that the fact that the person may make an unwise decision is to be ignored – it should be a trigger to consider capacity.
  • That the ‘retention’ limb of the capacity test (in s.5 of the Capacity Bill) includes express reference to the requirement to be able to retain information for an appropriate period, which includes whether it is “apt for the purpose for which it is given having regard to whether that purpose is for a single event or state of affairs or a continuing event or state of affairs.”
  • That the Department has an express power to make regulations as to the steps to be taken to assist a person to make a decision for themselves.
  • The best interests tests includes express requirements (in s.6 of the Capacity Bill):
    • To consider whether it is in the person’s best interests to postpone making a determination if it is likely that the person will have capacity in the future in relation to the matter;
    • That, where ascertainable, the person’s wishes, feelings, beliefs and values (and the other matters contained in, in English law, s.4(6) MCA 2005) are “paramount” in determining what is in the person’s best interests.
  • That, as with other legislation (for instance in Jersey), the term ‘deputy’ is not used, instead ‘delegate.’
  • That there is no provision for deprivation of liberty or advocates, but I understand that this is because these are going to be considered as part of Phase 2.
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