Joint Committee on the Draft Mental Incapacity Bill Written Evidence


100.Memorandum from the NHS Confederation (MIB 823)

  The NHS Confederation is the independent membership body for the full range of organisations that make up the NHS across the UK. We work to improve health and social care by influencing policy and the wider public debate, promoting management excellence and supporting members through networking and information exchange.

  The Confederation welcomes the opportunity to comment on the Bill before it begins its parliamentary journey. The Confederation broadly supports the principles behind the reforms which re-orientate the decision making process for people lacking capacity towards the individuals concerned and give precedence to their needs and wishes.

1.  WAS THE CONSULTATION PROCESS PRECEDING THE PUBLICATION OF THE DRAFT BILL ADEQUATE AND EFFECTIVE?

  We feel that the dissemination of information about the bill was sufficiently wide and included the broad range of stakeholder organisations and individuals affected. The organisation of several regional diagnostic events also provided a useful interactive forum for exploring the impact of the legislation and for feeding back initial comments about the bill. The Confederation strongly supports the focus on people with learning disabilities through the publication of tailored materials and organisation of workshops. It might also be useful to gauge the specific responses of other affected groups—eg older people's groups, NHS and social care professionals, carers in the forthcoming months of consultation.

2.  ARE THE OBJECTIVES OF THE DRAFT BILL CLEAR AND APPROPRIATE?

  The NHS Confederation wholeheartedly supports the objectives of the Bill—to empower people who lack capacity, whilst also providing protection and clarifying the statutory framework for them, their carers and for other professionals and organisations also affected.

  The Confederation believes the presumption of capacity inherent in the Bill is an important and positive principle in the legislative reform of mental incapacity. The move within the Bill to encourage planning for incapacity through Lasting Power of Attorneys and advance decision-making is also a sensible approach, which will avoid ambiguity and disputes for individuals and healthcare professionals and providers.

3.  DOES THE DRAFT BILL MEET THOSE OBJECTIVES ADEQUATELY?

  The Bill provides a clear framework for the establishment of mental capacity/incapacity and the preceding and subsequent decision making processes for the person concerned. The inclusion of decisions relating to healthcare and treatment is a welcome addition to the Bill and creates a clear framework for service users and providers.

  The "best interests" test in S4 gives autonomy to the individual and encapsulates the right degree of flexibility and inclusivity. The emphasis on the individual's past and present wishes and the "least restrictive" course of action should ensure that the outcome reflects the person's wishes and takes into account all the relevant information.

4.  ARE THE PROPOSALS IN THE DRAFT BILL WORKABLE AND SUFFICIENT?

Determining capacity

  Organisations and agencies will be required to interpret and implement the legislative principles in a wide range of situations and services concerning individuals with vastly different needs and wishes—eg people with learning disabilities, older people with degenerating mental health problems and people who have undergone a stroke. It is therefore crucial that the Code(s) of Practice, accompanying the legislation provide the right level of support and guidance—to enable the professionals and organisations concerned to give effect to the true spirit of the Bill. This is particularly relevant for the mechanics of the "individual act" assessment of mental capacity. The NHS Confederation supports this discriminate approach, particularly where people's capacity may fluctuate, but is keen to ensure that the practical application avoids creating a bureaucratic, time-consuming and intrusive process for users, clinicians and service providers.

General Authority

  The General Authority in the Bill creates a clear basis for intervention when a person is lacking capacity. In the realm of healthcare it is foreseeable that the views of patients, carers and clinicians will sometimes differ. The Bill is therefore potentially an important tool for authorising treatment and for providing clinicians with the confidence to intervene. The Code(s) of practice need to address the different scenarios which might arise and clarify the clinical processes.

Lasting Power of Attorney

  The Confederation supports the construction of the LPA facility reinforced by the best interest test of S4, as a flexible mechanism for effecting the individual's wishes. The measures to protect the donee (s13) and the requirement for registration with the Public Guardian (Schedule 1 Part 2) backed up by the Court's intervening power (s22) will act as important checks on the function. There is however a need for clarity about how the system will operate—particularly where the individual has appointed several donees, or where the Court has appointed deputies in some decision making areas. The donee may be required to make quick decisions about vital treatment—it is crucial that the framework enables him to interact effectively with the other bodies.

Court of Protection

  The extensive powers of the Court in various areas including healthcare decisions are balanced out by the need to act in the individual's best interests. The Confederation anticipates that the need to establish capacity for individual decisions will increase the number and frequency of applications, and is concerned that this will impact on the workload of health and social care professionals.

Advance Decision to refuse treatment

  The NHS Confederation welcomes the inclusion of advance decisions within the Bill and believes it will provide clarity for healthcare professionals, carers and those involved in providing treatment. By requiring the decision to be validated the Bill also safeguards the individual and all concerned.

5.  ARE THERE RELEVANT ISSUES NOT COVERED BY THE DRAFT BILL WHICH IT SHOULD HAVE ADDRESSED?

  The Confederation is satisfied that the Bill addresses the relevant issues.

6.  IN WHAT WAYS MIGHT THE DRAFT BILL BE IMPROVED?

  The Bill successfully builds on the systems currently in place within the NHS for people lacking mental capacity—in terms of assessing capacity, applying the doctrine of best interests and invoking the Court of Protection. This provides real opportunity for the NHS (PCTs and mental health trusts, clinicians, advocacy services, the NHS university and other educational bodies, intermediate care teams, carers etc) to be key players in delivering the reforms. However the Bill also carries significant training implications for staff (clinicians and managers at all levels) working in the NHS and social services. This must be tackled through the Codes of Practice in order to ensure smooth implementation.

Relationship with the reform of the Mental Health Act

  Part 5 of the draft Mental Health Bill published in June 2002 outlines informal treatment of patients not capable of consenting. This part of the draft Bill is intended to address the issues raised by so called "Bournewood" cases. The timetable for the parliamentary process of this proposed bill and indeed whether or not the draft Bill will be amended before the parliamentary stage is currently not known. In order to avoid confusion, it is clearly imperative that the two pieces of legislation are carefully scrutinised to ensure they are compatible and do not leave service users, carers or professional staff or the relevant statutory organisations confused or involved in bureaucratic and or legislative tangles.

  The NHS Confederation would be happy to provide further information on any of the points raised above and looks forward to seeing the report of the Parliamentary Committee.

August 2003





 
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Prepared 28 November 2003