Joint Committee on the Draft Mental Incapacity Bill Written Evidence

121.Memorandum from Marilyn Tickner (MIB 998)

  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 and decision-making.


  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 terminology.

  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 of decision-making.

  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 informal—by 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 and adults.

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 at all?

  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 refers).

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 processes;

    —  be accountable for his or her decisions; and

    —  submit reports of his or her dealings especially after for example, changes in circumstances and/or major expenditure.

  (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 attorney—LPA and Deputies—enabling 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 39 refers).

  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 abuses children.

  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 care input.

  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.

August 2003

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