92.Memorandum from Depression Alliance
Cymru (MIB 188)
I am writing to give a cautious welcome to the
Draft Mental Incapacity Bill 2003, which, if implemented will
do much to meet the concerns raised by Depression Alliance Cymru
during the debate around the Draft Mental Health Bill last year.
1. The Draft Mental Incapacity Bill 2003
sets out conditions for mental incapacity which would mean that
almost all people affected by depression would be deemed to have
capacity. Furthermore, by placing the burden of evidence on the
authorities to prove that a person lacks capacity, it almost guarantees
that a person affected by depression would not be subject to detention
and/or compulsory treatment.
2. I do have a number of concerns with the
Draft Mental Incapacity Bill 2003:
3. First, there are two clauses7(1)(c)
and 10(2)(b)concerned with the risk of harm to a person
lacking, or thought to lack capacity. In these clauses, the term
"substantial risk" is used, as it was in the Draft Mental
Health Bill 2002. During the consultation it emerged that "substantial
risk" would be taken by the courts to mean only "that
the risk has substance". Using this definition, there is
a substantial risk that any person with depression will take their
life or carry out serious self-harm, just as there is a substantial
risk that a young male who consumes alcohol in a public place
will commit homicide. The use of the term "substantial risk"
undermines the rights of those who have mental capacitysuch
as almost all of those with depressionwho are clearly intended
to be protected by this Act. Another, more precise termsuch
as "apparent and imminent danger" or "quantifiable
and imminent danger" would be more appropriate to providing
protection to those genuinely lacking capacity while safeguarding
the rights of the majority.
4. The sections giving legal force to advance
decisions are to be welcomed. This is particularly important at
a time when Government values the self-help and self-management
of expert patients who experience episodes of mental ill health
which may, on occasion, result in their becoming mentally incapacitated.
These proposals at least allow that expert patients know which
treatments and therapies do not work for them.
5. Unfortunately, the proposed new right
is entirely negative. It confers a right to refuse treatment,
but has no corresponding right to request treatments known to
the patient to be effective. An additional clause requiring practitioners
to take account of advanced statements on preferred treatments
would be a welcome enhancement to the Draft Mental Incapacity
6. I am concerned with the degree of precision
over treatment apparently required of the incapacitated person
in 23(4)(a)-(c). It is important that the broad thrust of the
proposed legislation is not lost in the detail. Common sense tells
us that a person who refuses, for example, ECT also refuses ECT
in combination with cognitive behavioural therapy. However, a
practitioner might be able to stretch clause 23(4)(a) to suggest
that this would invalidate the advanced statement. Much of this
will no doubt be clarified in the proposed codes of practice.
Nevertheless, I would urge that 23(4)(a) be amended to read, "that
treatment is not and does not include the treatment specified
in the advance decision."
7. I would also draw your attention to 25(2)
which indemnifies practitioners from carrying out or continuing
treatment refused in an advance decision. This clause is far too
passive, since a failure to ask is all that is required to avoid
liability. It would not be unreasonable to ask that a practitioner
take reasonable steps to ascertain whether an advance decision
exists prior to embarking on a course of treatment. I would suggest
that 25(2) should read:
8. "A person does not incur liability
for carrying out or continuing the treatment if, at the time
(a) he has taken reasonable steps to find
(b) he has no reasonable grounds for believing,
that an advance decision exists which may be valid and applicable
to the treatment."
9. Amended in this way, the clause would
require that a practitioner at least ask next-of-kin whether an
advance decision exists. Furthermore, if an advance decision exists,
the substitution of the word "may" for "is"
would oblige the practitioner to seek advice before rejecting
the terms of the advance decision.
10. The Draft Mental Incapacity Bill 2003
creates two new offencesill-treatment and/or neglect of
an incapacitated person by the person(s) charged with their care,
and concealing or destroying an advance decision to refuse treatment.
These offences are to be welcomed. However, the proposed remedies
do not seem proportionate to the seriousness of the offence.
11. Bearing in mind that we are talking
about offences committed againstby legal definitionthe
most vulnerable people in our society, two years imprisonment
and/or £2,000 fine is positively lenient. The offences concern
matters more akin to serious assault than to, for example, shoplifting.
As such, one would expect a maximum term of, perhaps, 10 years
imprisonment to be more fitting.
12. I trust that you will take these matters
into account in your committee's deliberations.