100.Memorandum from the NHS Confederation
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
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 groupseg older people's groups, NHS and social
care professionals, carers in the forthcoming months of consultation.
2. ARE THE
The NHS Confederation wholeheartedly supports
the objectives of the Billto 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
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
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 wisheseg 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 guidanceto 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.
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 operateparticularly 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 treatmentit is crucial
that the framework enables him to interact effectively with the
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
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
The Confederation is satisfied that the Bill
addresses the relevant issues.
6. IN WHAT
The Bill successfully builds on the systems
currently in place within the NHS for people lacking mental capacityin
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
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.