122.Memorandum from the Independent Healthcare
Association (MIB 1207)
The Independent Healthcare Associationthe
leading voice of the UK's nongovernmental health & social
care sectorvery 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
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 decisionswould 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
We look forward to your committee's findings
on the draft bill.