Joint Committee on the Draft Mental Incapacity Bill Written Evidence

122.Memorandum from the Independent Healthcare Association (MIB 1207)

  The Independent Healthcare Association—the leading voice of the UK's nongovernmental health & social care sector—very much supports the principle of the bill. The key will be getting the details right.

  It is particularly important to ensure that the Incapacity Bill is compatible with, and complementary to, the draft Mental Health Bill. We would encourage your committee to look at how these two draft bills would interface with each other.

  The situation is as follows:

    —  The Mental Health Bill (published by the Department of Health) seeks, among other things, to ensure people with mental health conditions who are being treated informally (ie, they have not been "sectioned") benefit from proper legal safeguards of the type that sectioned patients receive. The Government is seeking to close what has become known as the "Bournewood Gap", so-called after the case that first drew attention to the issue.

    —  The Mental Incapacity Bill (published by the Department of Constitutional Affairs) seeks to provide people who lack capacity (this would include a large proportion of people who are cared for by mental health providers) with the ability to appoint somebody with power of attorney over their health issues, similar to how it is already possible to appoint somebody to have power of attorney over financial issues.

    —  The question is: which bill would apply and in what circumstances?

    —  IHA understands that the list of conditions that will be covered by the Mental Health Bill has not yet been finalised. This has particular implications in the case of conditions such as Huntingdon's disease, Parkinson's disease, acquired brain injury, stroke patients and people with multiple sclerosis that develop mental health problems. With a such conditions, people may lose their capacity to make decisions—would the treatment of such people be regulated by mental health legislation or incapacity legislation?

  The IHA would welcome a broad range of conditions being covered by the Mental Incapacity Bill. This would a low for more personal and more effective protection for patients, as well as being less bureaucratic for nursing homes, hospitals and other care providers. As yet, however, we have not had confirmation from officials of which conditions will be covered by which bill.

  There are also other issues. For example, what mechanism will there be, in a lasting Power of Attorney, when the person appointed to act on behalf of the patient refuses treatment when the clinician (responsible under the Mental Health Bill) believes such a course of action to be against the patient's best interests?

  We look forward to your committee's findings on the draft bill.

October 2003

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