Capacity and Self-Determination Law (CSDL): Information for Curators Project Team - Legislation

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Carmella Simpson
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2 Capacity and Self-Determination Law (CSDL): Information for Curators Project Team - Legislation

3 Introduction The CSDL affects all people aged 16 and over The CSDL supports people s decision-making, including future decisions about care or treatment and appointing others to make decisions on their behalf The CSDL provides a legal framework for assessing capacity and making specific decisions at specific times for those who lack capacity

4 Human Rights The CSDL establishes safeguards for people who lack capacity and ensures human rights principles are at the forefront of care and treatment for people who lack capacity These rights come from the European Convention on Human Rights which are written into the Human Rights (Jersey) Law 2000 Relevant rights include: Article 5: Right to liberty Article 6: Right to a fair hearing Article 8: Right to respect for private and family life

5 What is in the CSDL? Guiding principles and best interests Lasting Powers of Attorney (LPA) Advance Decisions to Refuse Treatment (ADRT) Delegates and powers of the Court Capacity and Liberty Independent Capacity Advocates Crime of Wilful Neglect

6 Principles of the CSDL The five core principles are: 1. Everyone aged 16 and over is assumed to have capacity 2. People must be fully supported to make decisions 3. People have the right to make unwise decisions 4. Anything done on behalf of a person must be in their best interests 5. Anything done on behalf of a person must limit their rights and freedom of action as little as possible

7 Ability to make a decision 1. Can the person understand the information relevant to the decision? 2. Is the person able to retain the information for long enough to make the decision? 3. Can the person use or weigh the information in making the decision? 4. Can the person communicate their decision by any means? If there is difficulty in any of these areas then there may be a lack of capacity to make the decision

Assessing capacity The law provides a capacity test: a person is unable to make the particular decision at the time it needs to be made; because they have an

8 Assessing capacity The law provides a capacity test: a person is unable to make the particular decision at the time it needs to be made; because they have an impairment of the mind or brain or some other disturbance in the way their mind or brain works that is affecting the decision-making Capacity is decision and time specific

9 Best interests The CSDL does not define best interests this is deliberate Best interests is different for everybody as each person s life and circumstances are unique The CSDL gives guidance on what should be considered when thinking about a person s best interests You need to know about best interests as you are the decision-maker

10 Best interests decision-making Decision-makers: should do everything they can to support a person to make their own decision and participate in decision-making Decision-makers should consider: the person's past and present wishes and feelings the beliefs and values that would be likely to influence the person s decision any other factors that the person would be likely to consider including the views of other relevant people (if needed)

Delegates There will be situations where a person loses capacity to make a decision for themselves and have not registered an LPA The CSDL gives powers to the Court to make

11 Delegates There will be situations where a person loses capacity to make a decision for themselves and have not registered an LPA The CSDL gives powers to the Court to make individual decisions on behalf of a person who lacks capacity or to appoint someone as a delegate to make decisions There are two types of delegate health and welfare property and affairs

12 Delegates A delegate s decision-making scope is set by the Court. The length of time they are able to make decisions is also set by the Court A delegate must only make decisions in the scope of set authority The Viscount holds regulatory responsibility Delegates replaces current curators

13 Transitional arrangements Option A As each person reached annual accounts date they would be transitioned to a delegate with support Benefits: Happens at an existing point of review and possible change Risks: Old legal structure is repealed; two different systems; how to extend some aspects of old law; cause legal and public confusion Option B Everyone becomes a delegate as the law is enacted (or soon after) Benefits: Everyone is treated the same under the law; anti-discriminatory approach; everyone uses the same approach; no legal complications; new legal framework; can ask to make welfare decisions Risks: Big changes for all

14 Transitional arrangements Option B is being adopted Professional curators will be given advice Lay curators will be given advice and direct support This will all take place prior to the law being enacted Judicial Greffe is undertaking a review of current curators If you feel in wrong group - just tell them!

15 Preparing to become a delegate Find out about the CSDL events running regularly and we will help you to understand the role and responsibilities of a delegate Judicial Greffe will invite current curators to an event Think: what do you need to achieve for the person? any changes and planning needed? current constraints? do you need to make health and welfare decisions? Advance consideration means that you will be able to ask the right questions and get the right advice and support before the change

16 Proposals If remaining finance only, Judicial Greffe looking for a bulk change without curators needing to attend court Some financial changes, such as selling immovable property for care needs, needs quick Court representation If also seeking to be a health and welfare delegate, needs Court representation There will be no charges in moving to being a delegate or to make any changes at transfer to being a delegate

17 Further information Further information available from: Judicial Greffe s Office J.Woodworth@gov.je

GUIDE SERIES. An introduction to public law

GUIDE SERIES. An introduction to public law GUIDE SERIES An introduction to public law The Public Law Project (PLP) is an independent national legal charity. Our mission is to improve public decision-making and facilitate access to justice. We work