Joint Committee on the Draft Mental Incapacity Bill Written Evidence

114.Memorandum from Mr Ian Murray (MIB 925)


  1.1  I write with experience of having participated in the debate that took place in Scotland during the passage of the Adults with Incapacity (Scotland) Act 2000 (AWIA).

  1.2  While acknowledging that the Draft Mental Incapacity Bill (MIB) does not apply in Scotland, where the law on these matters is governed by the AWIA, and I am currently resident in Scotland, it is possible that I may reside in another part of the UK at a later date and so be affected by the provisions in the MIB. On this basis I hope that the committee will take due cognisance of any submissions made from people in Scotland despite the fact that the bill will not affect those resident here.

  1.3  The scope of the draft bill is very wide covering both financial and welfare matters. While the AWIA, dealt principally with financial matters the fact that there was a separate section on medical matters was I believe more helpful than the current situation with the MIB. Even within the area of welfare there is a wide range of issues covering simple every day affairs to matters literally of life and death. Legislation covering all these aspects of a person's incapacity in one parliamentary bill needs to be very carefully framed and in my opinion this has not been achieved in the draft bill. I think this applies in particular to Section 6 of the draft bill, The general authority.


  2.1  All of the areas that are raised below are with reference to medical matters and are concerned primarily with end of life issues. While there may be no problem with the framing of the bill relative to day to day welfare matters there are I believe a number of concerns in applying this to end of life issues. These are contained in the following sections.

    —  Best Interests

    —  General Authority

    —  Lasting Powers of Attorney

    —  Advance decisions to refuse treatment


  Any decision made or action taken "in the person's best interests" is a judgement. When used in reference to medical treatment it is usually understood as a clinical judgement. The danger in the bill as drafted is that unlike the AWIA there is no specific section covering medical treatment. Section 4 (2) of the MIB refers only to the past and present wishes and feelings of the person who lacks the capacity to speak for his or her self. The interpretation of "best interests" has been further confused by the statement of Lord Mustill in his judgement on the case of Tony Bland stating that because of his condition (PVS) Tony Bland had no best interests. Indeed it could be interpreted, from the statement "The concept of acting in the best interests of a person who lacks capacity already exists in common law" in the Overview of Bill published by the Department for Constitutional Affairs, that Lord Mustill's judgement was being put into statute law through this bill.


  It is very noticeable, comparing the MIB with the AWIA, that the general authority in this draft bill is granted to anyone, whereas in the AWIA the general authority is particular to Part 5 of the Act Medical Treatment and is granted under section 47 to the medical practitioner primarily responsible for the medical treatment. If there is seen to be a need, to clarify the common law, for a general authority, there surely is a greater need to set out in more detail a general authority to enable doctors to treat in circumstances that currently may be seen to be problematic. The model of the AWIA could be used in this regard.


  There will be some, including some doctors, who see a danger in giving to those who have no medical training powers to instruct a medical practitioner to withhold or withdraw life sustaining treatment. There will be others, in particular life long carers, who feel that they know their loved ones better than any doctor and know what is best for the person in their care. Indeed their concerns may well be about every day matters rather than end of life issues. Those in the first category will have grave concerns, those in the second will welcome this part of the bill. Regardless of who exercises this power the most important aspect is that there should be sufficient protection in the bill for the donor ("P"). This was a real battleground in the debate on the AWIA. The end result was the insertion of a complaints procedure where there was disagreement between the welfare attorney and the medical practitioner as to whether or not medical treatment should be withheld. This requires the medical practitioner to seek a second medical opinion and also makes provision for access to the courts if there is still disagreement after this procedure has been exhausted. A simpler clause outlawing the withholding or withdrawing treatment with the intention of causing death may have satisfied both camps. The provision in the MIB to use the Court of Protection as the ultimate authority over all areas of decision making for those who lack capacity will satisfy neither carers nor those who remain convinced that the case law judgement in the Tony Bland case is now being embedded in statute law.


  6.1  It would appear from the current wording of the draft bill that advance decisions do not require to be in writing. While advance decisions can be helpful in advising a doctor whether to treat or not, they can be very dangerous if they become legally binding on doctors. Advance decisions that are merely verbal would be extremely dangerous. Clause 24 is intended no doubt to answer many of the arguments against making advance decisions legally binding on doctors. However it does not answer the most powerful argument that one's expectations of what is an acceptable quality of life often change the older one becomes. A statement made in one's 40s or 50s should not be binding 20 years later when perhaps one will lack capacity and be unable to withdraw it.

  6.2  The introduction of advance decisions into statute law through The Mental Health (Scotland) Act 2003 was I believe a first in the UK; they are however only advisory. During the progress of this bill in the Scottish Parliament the committee took evidence from Helen Garner from the University of Glasgow, and David Cunningham Owens, Professor of Clinical Psychiatry, University of Edinburgh, who expressed grave concerns over advance decisions. A copy of the official report of the Health and Community Care Committee of the Scottish Parliament to which they gave evidence is attached to this submission as annex 1[127]. Their evidence is on pages 44 to 53. Professor Owens was most particularly concerned when during the final stages of the debate an amendment to make advance decisions legally binding on doctors was put forward. In the event the amendment was defeated.

August 2003

127   Not printed. Back

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