Mental capacity is very much front and centre in our community today.

Back in March 2016, an important policy letter was laid before the States of Deliberation. 

It related to the introduction of a new ‘Capacity Law’ and was partly focused on the importance of a person’s ability to make decisions, and for such decisions to be respected should mental capacity become problematic.

The policy letter stated boldly that the principal purpose of a new Capacity Law should be to empower people to make decisions for themselves wherever possible.

The policy letter supported a piece of English legislation called the Mental Capacity Act (of 2005).  That Act introduced a capacity test; it allowed a person to appoint another to act on their behalf when mental capacity was lost, and it also allowed actions to be taken in the future regarding various things such as a person’s health and welfare, property and financial affairs. The Act was designed to safeguard the individual.

It was the position of the then Health and Social Services Department that Guernsey would benefit in having a similar legislative structure.  It was sought that Guernsey should have what are known as “Lasting Powers of Attorney”, which continue to be legally valid after a person has lost mental capacity to make decisions for themselves.  This would be a big step forwards in our community, as at present our Guernsey Powers of Attorney cease to have legal validity if the person granting a Power of Attorney loses mental capacity.  That scenario then requires a separate series of steps to be taken, and some of which may be costly and time consuming.

The 2016 Policy Letter was well received, and very many steps (an understatement) have now been taken in the drafting of a Capacity Law.  Such a Law and the opportunities it provides will, without doubt, be covered by Ferbrache & Farrell commentary, guidance notes and briefings in future.

For the purposes of this update, however, the sitting of the States of Deliberation on 26th February 2020 is another step closer to the reality of the ‘empowerment of personal decision making’. 

The subject matter of the 26th February 2020 Mental Capacity Policy Letter is to add some technical detail to the draft Capacity Law, principally around legal representation at Mental Health and Capacity Review Tribunal Hearings (and subsequent appeals to the Royal Court).  Members accepted the various propositions, and it is now the responsibility of the Committee for Health and Social Care to report back to the States with proposals for the introduction of an advocacy service.

The new Capacity Law will be a great help to thousands of us in Guernsey, and to that end, we are watching and welcoming its progress.


Author Alastair Hargreaves Advocate, Solicitor & Managing Partner