Examination of Witnesses (Questions 1-19)|
10 SEPTEMBER 2003
Q1 Chairman: We would like to start
this afternoon's proceedings, and I welcome you and thank you
for attending. I have some house-keeping points before we proceed
to the questions. Even though we have the microphones the acoustics
in these rooms are not good, so if you could speak up we would
be grateful; we are extremely grateful for the written evidence
and the fact that you have found the time to attend; the session
is open to the public and it may be recorded for broadcasting;
there will be a verbatim transcript of the evidence and you will
be able to check the text for accuracy before it is published
in the report; as you have already seen, I am afraid proceedings
have to be adjourned for divisions in both Houses which may occur
and, if divisions occur, I will adjourn for ten minutes; I think
there is a note of the Members' interests which are relevant on
the table in front of you; and, generally, we are a Joint Committee
which is charged to examine the draft Bill. We are not producing
a White Paper on mental incapacity, and we have tried to structure
the questions which you have seen in relation to the structure
of the Bill, and the experience that you have had in Scotland
would be extremely helpful to us. Mr Ward, would you start by
introducing your colleagues?
Mr Ward: Thank you. I am a Scottish
solicitor and Covener of the Mental Health and Disability Committee
for the Law Society of Scotland. We are grateful for this opportunity
to come down and we hope that our experience in Scotland will
be of some help to you in considering what appears to us to be
a rather different piece of proposed legislation before you. I
had the opportunity of preparing the first draft of our memorandum
of comments and I take it we can take that as read. If so, I am
going to introduce my two colleagues. Two matters were not fully
covered in that memorandum: firstly, just what in simple terms
the Scottish legislation does encompass and David McClements will
say a few words about that, and you may have picked up from our
memorandum the importance of our general principles, and Liz Craigmyle
will say a few words about that.
Mr McClements: Our Act has seven
parts to it. Part 1 contains the general principles, but in addition
it contains the roles and responsibilities of different agencies
operating under the Act. Part 2 deals with the creation and exercise
of continuing powers of attorney and welfare powers of attorney.
This part sets down the main obligations on attorneys, the powers
of the court and the role of the Office of the Public Guardian.
Part 3 created an authority to intromit with funds belonging to
an adult. It can only be used to access funds in a nominated bank
account, and its operation is controlled by the Office of the
Public Guardian, to whom the intromitter is accountable. Part
4 makes provision for the management of finances of an adult by
a registered establishment. This will become operational from
October of this year. By regulation a limit of £10,000 has
been set for this type of management, and monitoring again is
exercised by a public body, the Care Commission. Part 5 establishes
the authority to treat by medical methods with appropriate certification
other related matters, including the authority for research. Part
6 creates intervention orders and guardianship orders, both for
financial and welfare matters. Intervention orders were proposed
by the Scottish Law Commission for the purpose of one or more
orders which may not have ongoing purpose. The functions of guardians
are detailed in this part of the Act, together with the methods
by which their actions are supervised. Finally, Part 7 deals with
a miscellany of issues such as transitional arrangements from
pre-existing law and the creation of the new offence of ill treatment
and wilful neglect.
Ms Craigmyle: The new Millennium
heralded the beginning of exhaustive on-going multi-disciplinary
training relative to the then Bill, and now the new Act, and everyone
was, and still is, on a steep learning curve. Training events
ranged from hundreds to only a few participants and they included
adults with incapacity, those with learning disability, with mental
health problems, with head injury, with dementia. Trainers emphasised
that, if nothing else, participants should leave the event with
the gateway principles foremost in their minds. If they wished
to intervene in the life of an adult then these principles, the
first four of which are enshrined in the Act, must be met, and
arguably the fifth principle should also be enshrined. The principles
are simple: they are the principles of benefit, past and present
wishes, views of relevant others and least restrictive intervention
and, finally, encouragement of skills. Extensive accessible training
materials have been produced by the Scottish Executive, the Office
of the Public Guardian, voluntary agencies such as ENABLE, SAMH
and ASAD. Websites carry extensive regularly updated guidance.
The executive introduced amongst its material an aide memoire
in the form of five principles printed on a credit card sized
card which was very popular. The perfect piece of legislation
does not exist but the Adults with Incapacity Act has generally
been welcomed and embraced as an empowering piece of legislation
with the emphasis very much on the adult's capacity. It has increased
the profile of independent advocacy, and it has given many vital
voices a voice.
Q2 Chairman: Thank you. If I can
start, what advantages are there in requiring evidence of a defined
mental disorder as a diagnostic threshold above and beyond a test
of a person's capacity?
Mr Ward: I think the general pattern
of legislation of this type is to have a fairly wide gateway which
enables one to access the legislation and then careful controls
before one actually intervenes. At the stage of the gateway where
one can potentially access the legislation, I note differences
between your draft Bill and our Scottish Act in two areas. First
of all, yours has a gateway of mental disorder. Ours has a gateway
of mental disorder and physical inability to communicate. I think
there are potential difficulties in your narrower gatewayfor
example, an advance statement operates during incapacity, if incapacity
means only incapacity through mental disorder. It would not operate
where there was a complete physical ability to communicate. Secondly,
our definition of incapacity relates to incapacity both to act
and to make decisions. I have difficulty in following your draft
Bill which has a definition of incapacity relating solely to making
decisions, yet for example under the general authority only permits
acting which makes one wonder whether that means an Act that excludes
a decision? What does it mean?
Q3 Chairman: I am not entirely clear.
If you have in Scotland a mental disorder but you can communicate,
how is that caught by your Act?
Mr Ward: There are two gateways,
in effect. The broad and most common one is mental disorder which
has a wide definition and is the same definition as in our mental
health legislation. It covers most situations, in fact, of incapacity
other than the situation of a complete inability to communicate
for physical reasons. We have that gateway also.
Q4 Chairman: Would that mean if somebody,
for example, had no mental disorder but was deaf blind and could
not communicate, they would still be caught by your Act?
Mr Ward: They might be but only
if they were completely unable to communicate because another
feature of our Act is an absolute obligation that if someone can
be communicated with, or even if they have incapacity if their
wishes and feelings can be accessed by any means whatsoever, they
must be accessed and at the level of capacity we only have incapacity
through inability to communicate if that cannot be done at all.
It is the same with wishes and feelings. I do happen to know that
one of your witnesses in the second batch from Scotland who is
quite well known to me has written some very interesting papers
on accessing the thoughts of people who would appear to most of
us to be totally unable to communicate. In Scotland now, if it
is possible, even if only with very skilled assistance to communicate,
The Committee suspended for a division.
Q5 Chairman: Firstly, I apologise.
I am afraid this is going to happen again. It is at the time of
year when both Houses are extremely busy, particularly the Lords.
To continue, it has been pointed out to me on the point made about
the difference between the two Bills that in the draft Bill, in
clause 2(3) it says, "A person is not to be treated as unable
to make a decision unless all and practical steps to help him
to do so have been taken without success" Does that meet
the point you were making about the difference between the two
Mr Ward: I think the language
in the Scottish Act is just a little stronger on the equivalent
point. Our Act says, firstly, on the inability to communicate,
"A person shall not fall within this definition by reason
only of a lack of deficiency and a faculty of communication if
that lack or deficiency can be made good by human or mechanical
aid, whether of an interpretative nature or otherwise."
Chairman: I see. That is an interesting
comparison which we will take on board.
Q6 Stephen Hesford: In our draft
Bill there is a presumption of capacity which I see as very important.
Do you have the same presumption, and is it spelled out on the
face of your Bill?
Mr Ward: We have a strong presumption
of capacity in our law, anyway. Unless my colleagues correct me,
we do not need that presumption because we have our principles
so tightly limited in any situation in which we would intervene
anyway. I mentioned earlier the gatewaythe gateway is incapacity.
There has to be incapacity and then we still do not do anything,
we do not intervene, unless very stringent principles are satisfied.
Q7 Stephen Hesford: From what you
were saying before, is that seen as a positive or as a negative,
to access something that you otherwise would not have because
of your incapacity?
Mr Ward: What I have termed the
gateway is a positive. The concern in debate was that we should
not exclude anyone who might potentially benefit from the Act's
provisions, so at the level of the gateway we want the broad gate
where we have it, but before we intervene, before we apply the
Act's provisions which is immediately discriminatorywe
are doing it for the best of reasons but we are dealing with somebody
differently because of their disability and to some extent taking
away their right to act or make decisions and putting some other
mechanism in placeit is restrictive and a very stringent
Q8 Mrs Browning: In the Bill before
us capacity assessment seems to be based more on a functional
approach, whereas in the Scottish legislation you seem to have
a little menu of clearly defined descriptions of mental disorder,
including, I note, any mental illness, personality disorder and
learning disability. I would be very concerned about that and
would like to make two points: firstly, the actual writing in
of personality disorder on a Billwhich I think is extremely
difficult to define, not least because it is a spectrumand
also how much you define in Scottish law "learning disability".
Is that based on the old IQ test? How do you define that?
Mr Ward: Liz is from ENABLE and
is a specialist in learning disability, so she can answer the
second part of your question. My personal view has always been
that I have had some concern about personality disorder and such
a definition for the reason you give. One could say that probably
almost every personality has its little disorders somewhere within
it, and some to a rather greater extent, but in the context of
capacity legislation, for the reasons I have given, that is not
a great problem because we are not applying any provisions to
anyone just because they come within that definition. We only
apply them if they come within that definition, and then the principles
Ms Craigmyle: On the learning
disability front, our law historically refers to mental handicap
which is now resisted in this day and age, and the definition
that my organisation tends to use is "related to birth"
or "shortly after birth" but we recognise that there
can be acquired learning disability also through head injury or
progressive genetic conditions, of which there are many. I recognise
the difficulties, however, in what you are saying about the definition
of learning disability and how it is perceived, but it is in there
and on the face of incapacity as we have it.
Q9 Lord Rix: In terms of learning
disability, has the Act made a great deal of difference to people
with learning disability, as such? Has it made a difference yet
to carers? Has it made a difference to staff or professionals?
Has it helped in any way to make their lives better at this stage?
Ms Craigmyle: Yes, I believe it
has made a difference. The training events have been pretty exhaustive,
as I said in my opening statement, since the beginning of the
Millennium and they are on-going. Much of my training is to carers
or to people with learning disabilities themselves and there were
many good things to come out of the big initial training events,
the ones with over 100 attending each event in a multi disciplinary
sense. One of the things that they focused on was that much could
be learned, if you like, from the coal face, and those involved
in caring or people with learning disability themselves were the
ones who were being proactive in making sure the professionals
involved in the life of a person with a learning disability became
aware of the content of the new Act and of what it could mean
to that person and to their carers. For the very first time in
our legislation it gave an empowerment to carers to have a voice
and to interact and talk to the doctors primarily responsiblenormally
that would be GPs but it could be a consultantand say to
them, "Here is what I know about the adult; here is the adult's
best and worst performances; I see him or her on a good day and
a bad day and here is what I think the adult is capable of."
Generally I feel very much that it has enhanced, people are embracing
it, it is not perfect but it is welcomed, and they are as comfortable
at this moment in time as they can be with it.
Q10 Baroness McIntosh of Hudnall:
You mentioned earlier on in your evidence that there was some
degree of overlap between the mental health provision and the
mental incapacity provision particularly in the definition of
disorder. Do you think, drawing on your experience, that it is
necessary to have separate legislation for mental incapacity and
for mental health, and would, in your view, the coherence of implementation
in those areas be improved if the two areas were combined under
one legislative framework?
Mr Ward: Firstly, what is mental
health law? In Scotland our Mental Health Act has always been
rather narrower than the English Mental Health Act. The English
Mental Health Act contains in Part 7 a lot of financial management
provisions which we would class as incapacity matters, not Mental
Health Act matters, so there is a question of definition. Back
in 1986 I think I was the first person to suggest to the Scottish
Law Commission that they should carry out a comprehensive review
of incapacity law and mental health law. Having recorded that,
I would say that I do favour the separate treatment of the two
areas involved because they are two different subjects. Mental
health law in its core sense is to do primarily with forms of
intervention, compulsory intervention. Incapacity law is quite
a separate matter: it is to do with addressing the difficulties
which some people may have in acting and making decisions for
themselves across a wide range of purposes. We have had recent
reform of both: we now have a new Mental Health Act on the statute
book about to come into force. We had two separate processes of
review and consideration, but very much in parallel, very much
linking to each other, and I think even down to questions of terminology
there is a risk of confusion between the two. There is confusion
on your door here which talks about the "Mental Health Incapacity
Q11 Baroness Knight of Collingtree:
I think it could be said, Mr Ward, that our major job on this
Select Committee is to see how and in what way we can improve
the draft Bill, and on that point I would just like to ask you
two quick questions. Firstly, might the inclusion of some explicit
general principles improve the draft Bill, and I also want to
ask you about the best interests test. Does this test, do you
think, provide the necessary protection from abuse for adults
with impaired capacity? I think that question is important to
put to you because I think you considered the concept of best
interests was inappropriate in Scotland in relation to decisions
made on behalf of adults with impaired capacity. Could you comment?
Mr Ward: Our general principles,
absolutely, are serving us well. They appear at the outset of
our Act: they apply to any intervention which can mean a decision
by a court, a decision by somebody with some form of authority,
a decision by someone acting anywhere in the process that may
confer authority, a decision not to do something is an intervention,
and our principles apply really throughout the whole legislation.
They are a major safeguard and also a very considerable help.
Because I specialise I tend to get difficult issues coming to
me, and very often if one sits down and says "Just a minute,
test this against the general principles", you are well on
the way to the best answer. If I were making recommendations I
would recommend the concept of much stronger general principles
with overriding force. Ours apply to the extent that the exclusion
of liability provisions in our Act do not help you if you breach
the principles. Secondly, on best interests, there was consensus,
I think, in Scotland that this was appropriate in child legislation
and not in adult legislation. The best I can probably do is refer
you to what the Scottish Law Commission said on the subject. They
basically adopted a principles approach rather than a best interests
approach, and if you would bear with me for a moment because I
think this is quite important I will read what they said. "Our
general principles do not rely on the concept of best interests
of the incapable adult. We consider that "best interests"
by itself is too vague and would require to be supplemented by
further factors which have to be taken into account. We also consider
that "best interests" does not give due weight to the
views of the adult, particularly to wishes and feeling which he
or she had expressed while capable of doing so. The concept of
best interests was developed in the context of child law where
a child's level of understanding may not be high and will usually
have been lower in the past. Incapable adults such as those who
are mentally ill, head injured or suffering from dementia at the
time when a decision has to be made in connection with them, will
have possessed full mental powers before their present incapacity.
We think it is wrong to equate such adults with children and for
that reason would avoid extending child law concepts to them.
Accordingly, the general principles"which they set
out"are framed without express reference to best interests",
and I was reading from paragraph 2.50 of the Scottish Law Commission
Report on Incapable Adults.
Q12 Baroness Knight of Collingtree:
In addition to those important points that you have put to the
Committee, would it not be appropriate also to point out that
judgment on what is the best interest, for all sorts of reasons,
can vary very considerably indeed?
Mr Ward: I have proposed in some
of my writing almost a hierarchy of decision-making. At one end
we have the adult's competent decision. We may be able to get
a competent decision from someone with impaired capacity about
parts of a composite decision. We may have clear wishes and feelings
from them, and some of these are instinctive. We see proposed
very complex mechanisms for assessing decision-making capacity.
If we think about it, the most important decisions in life we
tend to make instinctivelythe career we follow, who we
marry, the sort of place we like to live in. Can we really pick
up some of these rather theoretical methods of decision-making
and apply them to those decisions we make? We make decisions instinctively
and we make them on a habit basis. Somebody who may be quite impaired
in capacity may always choose tea rather than coffee when offered
it because they always have done. In many ways you might say they
are incompetent but that may still be a valid decision. We then
can build up a picture of what somebody's ethos is from their
family and friends and someone unrelated to them. Deciding what
is in their best interests, in my view, is almost at the end of
the hierarchy of possibilities. If we have no information about
the person then perhaps the best we can do is for me to say, "Well,
what is in your best interests?", but on dealing with adults
my own view is that that is a fundamentally unsatisfactory approach.
Q13 Huw Irranca-Davies: I can understand
the reasoning behind the differential between adults and children
but do you think there is any case to be advanced as we look at
our legislation for extending that into, if you like, the grey
area of the 16-18 year olds?
Mr Ward: Our adults are adults
at 16. Our child law effectively stops at 16 and our Incapacity
Act definition of an adult is someone who has attained the age
of 16. Basically the thrust of Scots law is that adulthood starts
at 16 but for some purposes is qualified up to 18, so probably
our experience is not going to be so helpful.
Q14 Mr Bercow: I understand your
concern that adults should not be patronised, Mr Ward, but in
order that it is not merelyas I am sure it is notjust
a semantic dispute, could you for my benefit give what you think
is the best practical example of how the benefit criterion is
more appropriate than the best interests criterion?
Mr Ward: I think it is, for instance,
somebody living in very odd and in many ways unsatisfactory circumstances,
and in a very poor form of accommodation. In our approach you
would say, "Is this what they have chosen? Is this where
they have always been living? Is there really a benefit to that
particular adult in taking them out of where they have chosen
to be?", whereas if, with no knowledge of that person, you
and I walked in together we might well agree and say, "Goodness
me, their best interests might be that we should get them out
of here right away."
Q15 Baroness Fookes: But best interests
in our draft legislation is qualified in a number of ways, including
the person's wishes. Does that not make a difference? It is not
best interests on its own, is it?
Mr Ward: It helps to make some
difference but it is still the starting point. We start with principles.
Q16 Mrs Humble: I was going to raise
a very similar point because you said in your objection to best
interests that you would then have to be qualified in a variety
of ways and you would have to expand upon it, and of course in
the draft Bill it is expanded upon because there is a checklist.
Does that checklist answer your problems? Does it deal with the
problems that you believe arise from the best interest description?
Does that checklist reflect the statement of principle that you
have in your legislation?
Mr Ward: I do not think it does
to the same extent, no. Language is important and it still does
start with the concept of what is paternalistically in this person's
best interests, and I think compared with our principles our principles
are stronger and more focused on the adult as a person and on
non intervention at all, unless it is clearly shown to achieve
a benefit and to be the least restrictive.
Q17 Stephen Hesford: Is there a practical
concern based on previous experience, ie before the implementation
of your newish Act, what my colleague over there called a patronising
view, because sometimes when one deals with a carer one feels
that, with the best of intentions, the carer is taking decisions
which ultimately could be said to be in their best interests as
a carer rather than the person that they are caring for.
Mr Ward: That is why our legislation
has nothing equivalent to your startling proposition of a general
Chairman: I think we are coming to that
Q18 Stephen Hesford: But, in terms
of best interest, is there any evidence or example that your method
addresses that potential problem?
Mr Ward: Our comparison and experience
obviously has to be a comparison between what we experience now
and what we were experiencing before our Act was introduced.
Q19 Mrs Browning: To follow up, I
agree that there are very often times when carers put a point
of view that is perhaps their view and their interest rather than
the person they are caring for, and I say this as a carer myself.
There are also times, however, when the carer, up against "authority"
for want of a better word, finds that authority's view is based
not on anybody's interests but on the resources they have to hand
at any given day of the year. How do you deal with that?
Mr Ward: By applying our general
principles rigorously to both.