114.Memorandum from Mr Ian Murray (MIB
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
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. AREAS OF
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.
Lasting Powers of Attorney
Advance decisions to refuse treatment
3. BEST INTERESTSSECTION
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.
4. THE GENERAL
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.
5. LASTING POWERS
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. ADVANCE DECISIONS
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.
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.
127 Not printed. Back