121.Memorandum from Marilyn Tickner (MIB
The following comments and observations are
based on my background in mental health services; first-hand experience
in developing services for older people with special mental health
needs; an M.Sc in Applied Social Studies; and an Advanced Award
(AA) in Social Work. They also draw on my work in facilitating
BASW's working party on mental incapacity and decision-making.
In respect of the latter, although these are
my own personal comments and observations, they attempt to tie
in the proposals made in the Draft Mental Incapacity Bill (2003)
with the recommendations made in BASW's Position Paper on mental
incapacity and decision-making in 1998 and the Association's responses
to consultation papers and Green and White Papers made over the
subsequent period of five years. They may or may not, therefore,
reflect current social work practice in the area of mental incapacity
This Draft Bill is concise and is accompanied
by explicit, business-like Explanatory Notes. Despite this, the
Bill is not, in my opinion, very user friendly as the document
utilises language and terms that are, at times, overly legalistic
which has the effect of making the document and its provisions
at times, dense and hard to read.
This very important and long-awaited piece of
legislation has the potential to affect many people and improve
their quality of life with its wide-ranging provisions. Therefore,
I believe that the Draft mental Incapacity Bill could and indeed
should be made more accessible by addressing and improving its
Unfortunately, in contrast to earlier documents
on mental incapacity, this Draft Bill lacks the holistic view
of someone who has reduced capacity and his or her carer.
In this respect, it is noticeable that neither
the Explanatory Notes nor the Draft Bill make any commitment whatsoever
to the need to maintain the rights and identity of someone who
is mentally incapacitated in a manner appropriate to a multicultural,
multiracial society whatever his or her age, race, gender, sexual
orientation, ethnic, cultural and religious origins (Mental Incapacity
and Decision-making: Professional Implications for Social Workers
(1998) page 12 refers).
Instead, the Bill concentrates on the medico-legal
perspective of decision-making processes with and for individuals
who are mentally incapacitated for example in areas of medical
treatment, and excludes the social dimension in such matters as
accommodation and social care thus effectively downgrading the
importance of the psychosocial aspects of mental incapacity.
Although the Draft Bill opens fairly well it
becomes increasingly limited and derivative as it goes on. People,
who are disadvantaged by mental incapacity, whether permanently
or temporarily, seem somehow to become decentred from the locus
The Draft Bill's definition and criteria of
mental incapacity are very positive measures, but the balance
of the document is skewed towards the role of carers and the means
of giving them legal protection.
Overall, therefore, the Draft Bill's proposals
ensure that any changes it puts forward remain within the normative
spectrum of change and will consequently maintain some of the
imbalances that currently exist within the status quo.
1. Persons who lack capacity; and 2.
Inability to make decisions
The acceptance of the Law Commission for England
and Wales' ("the Law Commission") definition of who
are mentally incapacitated and attendant caveats is to be welcomed.
Even so, while it lays down the criteria, the document states
at a later stage that the ". . . court may make declarations"
about whether a person has or has not capacity (1: 15 refers).
The Draft Bill does not make it mandatory for the court to rule
on capacity nor explains how, when, or where such a determination
is to be made or whether it should be formal or informalby
a judicial authority after multidisciplinary assessment?
BASW has maintained throughout that everyone
with reduced capacity has the right to multi-disciplinary and
multi-agency assessment (see 1.3(2) below).
In the interest of equal opportunity etc, it
is vitally important to ensure that we only arrive at the point
of deciding that someone is mentally incapacitated after those
procedures and processes have been gone through in a transparent
manner. This is also a crucial practice issue that needs to be
dealt with in an accompanying Code of Practice.
3. (2): Presumption against lack of capacity
This provision is worrying. I can envisage it
being used to contradict and/or undermine the provisions of 3(1)
in the Draft Bill. BASW's long experience in this area suggests
that it will inevitably be perceived by some, as the means to
declare that a person is mentally incapacitated on the basis of
previous behaviour without having gone through the courts and/or
undergone a multidisciplinary assessment. It may also lead to
someone whose mental incapacity is of a temporary and/or intermittent
nature to be regarded as permanently of reduced capacity.
BASW has repeatedly stated that people with
reduced capacity have a right to multi-disciplinary and multi-agency
assessment of their condition (Mental Incapacity and Decision-making:
Professional Implications for Social Workers (1998) page 12 refers);
BASW Response to the Green Paper on Mental Incapacity and Decision-making:
Who Decides Making Decisions on Behalf of Mentally Incapacitated
Adults page 10 refers); BASW Response to the White Paper: Making
Decisions: Release of Payments Scheme page 13 refers).
4. Best interests
BASW endorses the use of "best interests"
in relation to people with a reduced capacity. Unfortunately the
standard of "best interests" is often glibly bandied
about and too thoughtlessly applied by busy staff, perhaps untrained
in the social dimensions of decision-making and preoccupied by
the need for defensive practice. The result is that the medico-legal
model often dominates decision-making processes with someone who
is mentally incapacitated.
Although much of 4(1) and 4 (2) are good practice,
which BASW agrees with, they are far too limited. There are loopholes
here too, such as "4(2 (d)) `. . . if it is practicable and
appropriate to consult them . . .'". To be sure, under-resourced,
poorly trained staff will bypass these provisions when under pressure
and/or given little organisational support.
Moreover, where are the references and commitment
to advocacy for individuals who are mentally incapacitated that
we saw in earlier papers on mental incapacity, such as the Mental
Incapacity Report (1995)? BASW has repeatedly voiced its commitment
to the availability of advocacy for people who are mentally incapacitated
and their carers ((Mental Incapacity and Decision-making: Professional
Implications for Social Workers (1998) page 12 refers). I think
that BASW should again remind the Department of Constitutional
Affairs (DoCA) that advocates have an important role to play with
and for this group of people.
This part of the Draft needs to be considerably
strengthened as a whole to add a more positive social dimension
to decision-making. The inclusion of advocacy, multicultural and
multiracial issues etc would be a start. I would also like to
see more of the provisions made in the Explanatory Notes included
in the Bill itself, for example a statutory requirement to ensure
that all methods of communication are fully explored and utilised
vis-a"-vis individuals who have problems with communication.
This should be up front, not tucked away in the Explanatory Notes
that may or may not be read. These factors need to be incorporated,
if only to comply with issues under ECHR.
In the past, BASW has also called for greater
use of "substituted decision-making" in decision-making
processes for this group of people and, although it is not perfect,
the Association has developed a Charter of Rights and Social Needs
that attempts to operationalise the issue (Mental Incapacity:
Professional Implications for Social Workers (1998) page 12 refers).
As this standard of decision-making requires
more time and entails some degree of risk-taking, however, it
will need to be accompanied by a qualitative change in mindsets
together with different modes of training, organisational attitudes
and criteria relating to the "duty of care" concerning
vulnerable individuals. This Draft Bill provides the opportunity
to build it into legislation. It can be done; it just requires
the will, the wit and more resources.
5. Adults and young people
BASW has previously called attention to inconsistencies
in current legislation whereby young people aged 18 are regarded
as within the ambit of adult legislation and those under 16 are
seen as the responsibly of child care legislation (BASW Response
to the Green Paper on Mental Incapacity and Decision-making: Who
Decides? Making Decisions on Behalf of Mentally Incapacitated
Adults page 7 refers).
Again, this proposal made in the Draft Bill
is to be welcomed as it will bring clarity to a confused area
of practice and will provide continuity of care between children
6. The general authority; and 7. Restrictions
on the general authority
BASW agrees with the restriction on the general
authority to constrain a person's liberty of movement unless life
and limb are threatened and BASW has previously drawn attention
to the need to legislate in this area (Mental Incapacity and Decision-making:
Professional Implications for Social Workers (1998) page 13 refers).
Otherwise, this part of the Bill seems narrow
and materialistic in scope with a decided medical orientation.
But given that "best interests" is also restricted in
its conception then perhaps it's inevitable that the general authority
will reflect those perspectives and exclude the social dimension.
By expanding "best interests" it should be possible,
hopefully, to expand this section. The entire section on general
authority needs to be broadened to encompass social aspects of
decision-making and advocacy in relation to people whose capacity
is reduced. For example, what about the process of deciding mental
capacity? As no one person is meant to hold general authority
and a donee or Deputy can overrule any decision made under General
Authority, who takes the lead when this or any decisions are required
and who and/or what are the means of resolving conflict say between
carers and/or donees?
When such conflicts occur who represents the
person who is mentally incapacitated and how are the interests
of the person whose capacity is reduced going to be protected
within this general authority? How do advocates fit in here, if
The underlying issue here seems to be the role
of caring (see above 1.4: Best Interests). Although the vast majority
of those caring for people with a reduced capacity are honest
and genuine in their commitment to the person they are caring
for, BASW has always been aware that mentally incapacitated adults
are often highly susceptible to abuse and exploitation.
Mindful of this and the amorphous nature of
carers as a group and the ubiquitous everyday decisions they make
for and on behalf of vulnerable individuals, BASW has consistently
raised the issue of who and/or what defines the nature of caring
(BASW Response to the Green Paper: Making Decisions on Behalf
of Mentally Incapacitated Adults (1998) pages 14-15 refer); and
BASW Response to the White Paper: Making Decisions Release of
Payments Scheme (2000) pages 15-16 refer).
While recognising that there can be no guarantees,
decision-making under the General Authority proposed in this Draft
Bill does not seem to offer enough safeguards, in my opinion,
to eliminate the possibility of abuse and exploitation in regard
to vulnerable individuals. Is there a case for a charter of rights
to be enshrined in this Bill, such as that put forward by BASW,
to which anyone caring for individuals who have a degree of capacity
have to adhere to? (Mental Incapacity and Decision-making: Professional
Implications for Social Workers (1998) page 12 refers). Or alternatively,
a scheme whereby carers enter into a formal arrangement and/or
Affidavit recognised in law such as suggested by BASW which was
itself modelled along the lines of one proposed by the then Lord
Chancellor's Department (LCD) BASW Response to the White Paper:
Making Decisions Release of Payments Scheme (2000) pages 15-16
8. to 22. Lasting powers of attorney and
appointment of Deputies
(As an aside, it is good to see that the DoCA
has taken heed of BASW's request to rename the power of attorney,
indeed it seems to have adopted one of BASW's suggestions by replacing
the Enduring Power of Attorney (EPA) with one of a Lasting Power
of Attorney (LPA)! (BASW Response to the Green Paper: Who Decides?
Making Decisions on Behalf of Mentally Incapacitated Adults (1998)
page 26 refers)).
In order to prevent the continuing financial
abuse and exploitation of people with reduced capacity that can
take place under the current ad hoc arrangements, BASW has supported
the idea of replacing the provision for Enduring Power of Attorney
(EPA) and differing forms of making decisions of a welfare nature
with a new power of attorney. BASW thought that this new power
of attorney should:
be subject to accreditation by an
independent solicitor or clinician;
have a certificate of notification;
have a prescribed format;
adhere to transparent decision-making
be accountable for his or her decisions;
submit reports of his or her dealings
especially after for example, changes in circumstances and/or
(BASW Response to the Green Paper: Who Decides?
Making Decisions on Behalf of Mentally Incapacitated Adults (1998)
page 29 refers).
The Draft Bill goes some way to meeting BASW's
criteria and, in all, this section dealing with the two new types
of powers of attorneyLPA and Deputiesenabling decision-making
to be made for and on behalf of vulnerable adults, covers approximately
eight pages of the Draft Bill. I am not, however, convinced that
the proposals, despite their volume, offer sufficient safeguards
in the form of monitoring and review of either LPA's or Deputies.
There are some good things. I note that in the
Explanatory Notes (page 30 refers) fluctuating capacity has been
taken on board and the need to seek variation of the power of
attorney when capacity is recovered. This is a very positive measure,
as fluctuating capacity has tended to fall off the agenda in the
past. But Clause 1.20 is only applicable to Deputies. I would
like it also applied to LPA's. Otherwise, the arrangements for
both LPA's and Deputies needs to be tightened as neither LPA's
or Deputies appear to be time limited in any way; the payment
of fees etc seems unstructured and almost random in both the Draft
Bill and the Explanatory Notes; nor does there appear to be any
regularised manner in which to update the power of attorney and/or
carry out spot checks (BASW Response to the Green Paper: Who Decides?
Making Decisions on Behalf of Mentally Incapacitated Adults (1998)
page 26 refers).
Where, too, are provisions for the monitoring
and support of carers performing these responsible roles, sometimes
together with other donees who may be opposed to the carers' line
of action in relation to someone who has reduced capacity? (BASW
Response to the White Paper: Making Decisions Release of Payments
Scheme (2000) pages 15-16 refers).
23. to 25. Advance decisions to refuse treatment:
BASW has always acknowledged that legislation
associated with Advance
Directives is currently confused and has consistently
supported the need to clarify common law in this area (Mental
Incapacity and Decision-making: Professional Implication for Social
Workers (1998) pages 19-21 refer).
However, although there have been many advances
in case law during the past five years, this remains a very delicate
issue and it is one on which the last attempt to pass legislation
on mental incapacity foundered in 1995. On a personal level, I'm
surprised to see it included in this Draft Bill. I note from the
newspapers that there have already been protests about the Bill,
with suggestions that it will legitimise euthanasia by neglect,
so I'll be even more surprised if it survives but we shall see.
30. Codes of Practice
While there's a commitment to consult in both
the Explanatory Notes and the Draft Mental Incapacity Bill, there's
no commitment here to publish the Code of Practice at the same
time as the legislation comes into force.
With the experience of the Mental Health Act
of 1983 in mind, BASW has consistently called for any Code of
Practice accompanying new mental incapacity legislation to be
issued simultaneously to that new legislation being enacted (Mental
Incapacity and Decision-making: professional Implications for
Social Workers (1998) page 27 refers); BASW Response to the Green
Paper: Who Decides? Making Decisions on Behalf of Mentally Incapacitated
Adults (1998) page 35 refers); BASW Response to the White Paper:
Making Decisions Release of Payments Scheme (2000) page 6 refers).
31. Ill-treatment and neglect
With the proviso that any new offence regarding
the ill treatment and neglect of a vulnerable person would be
a last resort, BASW was fully supportive of the introduction of
legislation in this area when the suggestion was mooted in Who
Decides? (BASW Response to the Green Paper: Who Decides? Making
Decisions on Behalf of Mentally Incapacitated Adults (1998) page
The creation of a New Offence regarding the
ill treatment and neglect of an individual with reduced capacity
will surely mark a brave new world. But, in my view, it is this
part of the Draft Bill that has the most serious shortcomings.
The New Offence is a major innovation but I do not believe it
goes far enough.
I think a further insertion is called for in
terms of someone who may not commit an offence under the terms
of 31 (a) or (b) but who may, nevertheless, allow, cause and/or
incite others to mistreat, exploit and/or abuse a person with
reduced capacity. I'm thinking of sexual abuse and/or prostitution
in particular here and the provisions of 31(a) or (b) may not
necessarily apply. In any case, I think that the penalties for
such offences are far, far too light. Parity of esteem should
be given to the principle of vulnerability. If they are to be
any kind of worthwhile deterrent, then the sentences for these
New Offences should on a par with those imposed on someone who
In other respects, the creation of New Offences
will inevitably impose a heavier workload on social workers in
areas such as investigation and multi-agency collaboration; the
preparation of social reports; and court appearances. Additional
resources must accompany these measures as they will certainly
incur extra costs and require more specialised training. And,
if such measures are to be successfully implemented, they have
to be accompanied by the appropriate input of training and resources;
and importantly, a change of culture as social workers will have
to work closely with the police and other agencies as allegations
are taken through the criminal justice system.
Another shortcoming is the absence of any requirement
to provide protection for a mentally incapacitated adult once
a carer, or other party, who has been accused of an offence, is
awaiting trial. Unfortunately, even within the framework of this
Bill that provides for an assessment of someone's capacity, it
is a salutary fact that there is no way in which a vulnerable
individual with reduced capacity can be removed from an abusive
and/or neglectful situation. This is a grave omission as apart
from Section 47 of National Assistance Act (1948) the only course
of action for this group of people is "de facto" detention
within a mental institution or an inappropriate imposition of
Section 1 of the MHA (83). This may result in a social worker
involved with someone whose capacity is reduced and who is being
abused, being faced with, on the one hand, an increased workload
in the form of having more reports and interagency collaboration
and on the other a remaining dearth of suitable provision for
the individual concerned.
In such situations, prior to the conviction
of someone who is ill treating and/or neglecting a person who
is mentally incapacitated, it is possible that the abuse and/or
neglect may continue demanding very considerable additional social
After considering the matter in some detail,
BASW recommended that circumstances in which the welfare of a
mentally incapacitated individual is endangered or suspected of
being so, should warrant investigation the imposition of a protection
order (BASW Response to the Lord Chancellor's White Paper Making
Decisions Green Paper Who Decides pages 37-43 refer).
34. The Court of Protection
BASW has supported the idea of an updated Court
of Protection as being mainly responsible for decision-making
with and for individuals with reduced capacity. In BASW's view,
providing the Court is modernised, user friendly, sufficiently
staffed and resourced and has a meaningful regional presence,
it should be well able to become a new superior court of record
for this vulnerable group of people (BASW Response to the Green
Paper: Who Decides? Making Decisions on Behalf of Mentally Incapacitated
Adults (1998) pages 29-30 refer).
The Adults with Incapacity (Scotland) Act 2000
has had its teething problems and has taken time to bed down but
it appears to have been founded on a person-centred approach.
Superficially, this Draft Bill seems to be following the example
of the Scottish model insofar as it has also adopted a Public
Guardian as the pivot of the new superior court. BASW supported
such an innovation when suggested in Making Decisions (2000) as
the Association perceived it to be potentially the best means
of ensuring that new legislation for mentally incapacitated adults
would be effectively implemented. The Scottish model had dedicated
resources attached to it from the outset and the Public Guardian
had a central role within the Supreme Court and was thereby invested
with the necessary level of authority from the start of the scheme
(BASW Response to the White Paper: Making Decisions Release of
Payments Scheme (2000) page 6 refers).
Unlike the Scottish example however, this Draft
Bill does not propose the Public Guardian be part of the Supreme
Court but instead part of a new superior court of record. The
implications of such a move, together with the establishment of
regional and/or county registries, are difficult to evaluate but
one of the advantages of basing a new structure on the old Court
of Protection was that the Court had built up an extensive body
of knowledge and expertise regarding the management of the financial
affairs of mentally incapacitated adults. Whether this will be
dissipated by the introduction of new arrangements and whether
the jurisdiction of the court will be adversely affected by such
changes, is hard to judge.
The fees and costs incurred by reference to
the new Court of Protection are an issue, as those charged by
the old Court of Protection were often to the detriment of the
vulnerable person concerned. In BASW's opinion, there should be
no financial penalty attached to the Court of Protection (Mental
Incapacity and Decision-making: Professional Implications to Social
Workers (1998) page 23 refers).
If I examined the fine details of this Draft
Bill I have no doubt that I would have other aspects to comment
on. All told, although I was pleasantly surprised to see this
Bill manifest itself after such a long, long period of gestation
and then disappointed at its contents, I do think its provisions
signify a means with which a social worker can assess a person's
capacity and ensure that more appropriate procedures can be put
in place to meet his/her special needs. It can be built on. It
is progress of a sort.