Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 20-39)



  Q20  Mrs Browning: You must have more resources than we have, then!

  Mr Ward: Yes. I suspect that more often the principles have been used to give authorities a hard time than they have been used to give carers a hard time, but to a certain extent the approach is objective and there is the obligation to take account of the relatives and primary carers' views. Anybody making a decision has to do that.

  Q21  Laura Moffatt: I am interested in the comparison. We are trying to tease out on this Committee the difference between what you clearly see is the benefit of not having just a general view and the fact that there must be a benefit to a particular person if you are to achieve the outcome you are looking for. This prelegislative scrutiny has attracted a lot of attention—perhaps unfairly—because some people have focused on the problem of artificial feeding and hydration as one of the basic things we are attempting to deal with. We see that as not being true and probably unfair, and we need to broaden people's aspects of what we think we are trying to do here and try to get them to understand it is much wider issue. But could you tell me under the Act that you have how you would describe withdrawal of artificial hydration and artificial nutrition as a benefit to that particular person?

  Mr Ward: Firstly, I should point out that while refusal and withdrawal of treatment was a topic included in the draft Bill for Scotland prepared by the Scottish Law Commission that was dropped by the Scottish Executive in our legislation, so we have had the benefit of discussion and consideration of that point in the lead-up to our legislation. Because of that I can answer the second part of your question and I may come back to first part. It was never envisaged that we would be saying that to withdraw some form of medical intervention would be a benefit. The result that our principles produce in that situation would be to ask the question, "Is the medical intervention a benefit? Is the provision of the artificial feeding or hydration a benefit?" If it is judged not to be a benefit or to have ceased to be a benefit, it is that intervention which is no longer justified and is not given or is withdrawn. So there is not a benefit in withdrawal, but the provision or the treatment which is the intervention may cease to be a benefit.

  Q22  Laura Moffatt: But when questioned before you said that not taking action was a legitimate intervention?

  Mr Ward: Yes.

  Q23  Laura Moffatt: So that gives it equal status?

  Mr Ward: Yes, but that is the view the Scottish Law Commission took. They recognised the difficulty of the point, and that is the approach they took.

  Q24  Baroness Knight of Collingtree: The BMA recently decided that they would call giving food and liquid through all these methods "treatment". Has that altered your own way of managing affairs of this kind, because there is a great deal of concern about the fact that, being called "treatment", feeding people can be disallowed or stopped.

  Mr Ward: I am aware of that debate: I do not think that the issues of terminology are having an effect of which I am aware in Scotland, and these are essentially issues of terminology. I am aware that some legal systems, not British ones, make a clear distinction between the care and treatment and I do not think we tend to in the United Kingdom. I do not know if my colleagues agree?

  Mr McClements: I think we agree with that.

  Lord Rix: Is there not case law in this regard?

  Q25  Chairman: I was about to ask that. Would the Bland judgment, which I think has driven the BMA view, have any influence or effect in Scotland? If there were a case brought to court about withdrawal of treatment, would the decision of the Law Lords here in the Bland judgment have any effect?

  Mr Ward: We tend to look at a case called the Law Hospital case in Scotland, which is the name of the hospital where the lady was, and that is our leading case on the subject. Part of the reason why this topic was not carried through into our legislation is that that case arose after the Scottish Law Commission had reported, and the Court of Session provided some very clear guidelines on when they considered that withdrawal or termination of treatment might be appropriate and on procedural aspects as well, so we have switched to a judicial development of this area of law. The official reason given by the Scottish Executive for not retaining such matters in the legislation is that "attempts to legislate in this area will not adequately cover all situations which might arise and could produce unintended and undesirable results in individual cases".

  Q26  Chairman: Does that mean they are leaving it to the courts to decide?

  Mr Ward: Yes. The courts have greater flexibility and it has been left to the courts.

  Q27  Chairman: It is the Scottish equivalent of common law, in effect?

  Mr Ward: Yes, based on the Law Hospital case which you could say in rough terms is the Scottish equivalent for us.

  Q28  Chairman: That is very helpful indeed.

  Mr Ward: I am not saying that is necessarily a view I would personally advocate, but that is what happened in Scotland.

  Q29  Baroness Fookes: Could we ask what you do advocate, then?

  Mr Ward: Both on this and the other topic that was dropped from the Scottish legislation which is the question of advance statements I think I would have preferred the clarity of putting these into legislation and having it as part of the scheme of the legislation so the interrelationship of these elements would have been clear, but I would have hesitated because there is quite a degree of force in the argument that, if a subject is developing fairly rapidly and, for example, views on what is and is not treatment are changing, there is certainly a very stateable argument that it is better to let the courts respond and develop principles for a little longer before fixing the matter in legislation. I am a little ambivalent about it and I can see the arguments both ways.

  Q30  Chairman: We have had an enormous number of submissions of concern over this aspect of the Bill. Did you have the same concern in the consultation period and in the drafting of your Bill?

  Mr Ward: Yes. I was principal spokesperson for an alliance that was campaigning for the Bill. It was quite a substantial organisation and we had more than 70 organisations in it with over 30 national organisations. We had great difficulty over these topics and I believe that, in fact, that difficulty was part of the reason for dropping some of them. They really almost hijacked the agenda. Those who had strong views were using our legislation to have an argument about those views which was not relevant to what appeared in the draft Bill, but the argument was loud and it did threaten to draw attention away from the vast bulk of the provision.

  Q31  Baroness Barker: Following that up, is the consequence of that decision that you will, for the foreseeable future, rely on case law?

  Mr Ward: In the matter of advance statements and in the matter of withdrawal and termination of treatment, yes.

  Q32  Mr Bercow: We have had more of an inkling of your thinking on the next subject, I know you will want to elaborate on it. How adequately, if at all, is the scope of the general authority defined in the draft Bill or is it too little circumscribed? How do you recognise it will work in practice and tacked on to that, and related, how useful is the concept of reasonable belief in the capacity?

  Mr Ward: The idea of a general authority fills me with dismay. If somebody thinks my capacity is becoming impaired they can do what they think is best, they can act. What does it mean "they can act". I cannot see how that can be compliant with the European Convention on Human Rights. If somebody is making decisions about me or for me they are taking away my right, albeit for very good reason, they are taking away my right to make those decisions myself. Quite clearly under Article 6 of the European Convention that should only be done with the authority of a court after a hearing.

  Q33  Mr Bercow: The issue of liberty and consent is extremely important and I do not grapple with that but just to elaborate, do you think in practicable terms if we were to ignore Mr Ward's advice and say "he can do what he likes in Scotland, we think that we have been advised sufficiently in the draft and we can go ahead as we think fit", there is going to be a ream of damaging practical cases that will result and cause us to repent?

  Mr Ward: In some of your papers I saw a figure that the Master of your Court of Protection quoted, quite a high percentage of cases of powers of attorney where he believes there was abuse, there was misuse of powers. That is quite a high percentage in a situation that is already regulated and known about. I think if one confers that authority to do what they like on people who are not regulated, not known, not supervised the risk of misuse of that authority will be grave. One thing that is clearly lacking from that, even compared with the most simple procedures, is the most simple protections. We have very simple procedures in our legislation which requires somebody to say, "Just a minute, is this person's capacity impaired? Is it impaired to a degree that they cannot act or decide in the particular matter that we are addressing therefore do we need to put in place a procedure?" I suspect that the general authority will stop people even considering such a point. It will be used retrospectively as a justification for what has occurred.

  Q34  Mr Bercow: And administrative convenience will end up taking precedence.

  Mr Ward: Everybody's convenience. Of course there will be many, many people who will exercise it very wisely, very sensibly and very responsibly, but it would be equally easy to proceed otherwise.

  Mr McClements: I was just going to add to Mr Ward's comment, I think a practical problem could well be general authority, where an individual engages with a third party organisation in terms of being able to show clearly that they actually have the authority that I mentioned in the opening statement. We have a section, part three, which deals with financial institutions. I have great concerns as to how financial institutions would view and recognise somebody who claims to have general authority and how they would deal with that.

  Q35  Baroness McIntosh of Hudnall: I think it is pretty clear that there are certain aspects and general authority principles that are open to question. On the whole what you have said is viewing the position from the standpoint of the person requiring care, the incapacitated adult. There is another aspect to it, the protection it affords to the carer, in other words it frames the carer's action but it may not do so entirely adequately. Can you explain in what way carers within the Scottish legal framework are protected in relation to actions they may have to undertake in certain circumstances there and then on the day, as it were, which could retrospectively be construed in a particular way? In what way are they protected within your framework?

  Mr Ward: I am going to answer your question to start with slightly obliquely, to a large extent the move for reform in Scotland started with carers. We started by trying—and I mentioned this in our memorandum—to use our common law principles in modern ways, providing procedures to create formal guardianship. This was driven typically by the parents of young adults with learning disabilities who were saying, "we know we are making these decisions, we are ordering our children's lives, we have no authority, nobody has thought about what we are doing, nobody is controlling whether what we are doing is appropriate and because we are doing it that way also when we are dealing with authorities we are just another adult in the same house". To a large extent those developments which were the precursors of our reform came from carers because they were worried about these aspects. I think there is all the difference in the world between making representations about the living conditions or life-style or activities of your young adult learning disabled son or daughter living in some accommodation under somebody else's care because you have welfare guardianship powers which authorise you to make such decisions, and you always have to obey the general principles, compared to being just a parent trying to have something done because you do not think the way it is happening is appropriate.

  Q36  Lord Rix: Under your Act how do the actual powers which you give to the parents of learning and disabled young adults operate, do you have to go to court to seek them?

  Mr Ward: If one is looking for guardianship powers, yes, you have to apply to the local Sheriff Court. If we are seeking welfare powers we have to produce a couple of medical certificates, one of which is required to be from a consultant psychiatrist, we have to give notice to the local authority, whose mental health officer also produces a report. These reports are submitted. The whole process is governed by the general principle, so one has to justify each power sought on the benefit and intervention basis and on the other principles. The guardian will then have some powers tailored to the circumstances and abilities of that particular adult, even with those powers the guardian must then continue to apply the principles so they use them in a manner consistent with the principles.

  Q37  Lord Rix: Have there been many powers granted of this nature as yet?

  Mr Ward: David may have some statistics, I did not bring those.

  Mr McClements: The statistics for the first six months in relation to appointments of welfare guardians are as follows, there were 72 appointments in the first six months, from April 2002 to September 2002, with 108 pending at that stage. There has been continuing development in that, there have been more cases. It may be interesting in relation to the statistics that the number of powers of attorney—the power of attorney is the capability to grant welfare power of attorney—in the first 18 months of registration were 3,890 continuing powers of attorney, lasting powers of attorney and an additional 1,439 which had joint powers of welfare and continuing powers.

  Mr Ward: And 189 purely welfare.

  Q38  Lord Rix: Does ENABLE think that is sufficient for the time that has elapsed since the passing of this Act?

  Ms White Craigmyle: We probably think it is. It is important to point out there are of course those people with learning disabilities who understand a power of attorney and even understand possibly with some support. In my legal practice with ENABLE we have assisted 15 individuals so far with learning disabilities to enter into the granting of a power of attorney themselves in favour of an individual of their choosing. Usually more support is needed for people with learning disabilities but if we are in doubt of course we consult with the relevant GP or doctor. Given the passage of time, yes, I think the statistics that David has quoted are reasonable.

  Q39  Huw Irranca-Davies: I have listened with great interest to your comments on general authority and your strong reservations about it. I was going to ask you in respect of Clause 7 of the draft legislation we have in front of us whether you thought the restrictions on the use of general authority were adequate? I suspect your response is going to be that the fundamental premise of the general authority is flawed in such a way that the restrictions themselves are unworkable?

  Mr Ward: That would be half my answer. The other half was one I alluded to earlier. I do not know what is authorised. It is lawful for any person to do an act, not to make a decision. You make the distinction between decisions and acts, what acts are not decisions? Some things are more clearly acts and some things are more clearly decisions, acting to safeguard your interests in a more general sense is acting, it usually comes down in implementation to making decisions. Not only do I have reservations about the concept altogether, but I find it difficult to look at the restrictions because I do not know what it is that is being restricted.

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