Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

3.Memorandum from The BPS Division of Clinical Psychology (Scotland) (MIB 991)


  1.   Background: Highlights interest of BPS DCP (Scotland) in Bill in light of experience of Adults With Incapacity (Scotland) Act 2000 [AWI Act] and welcomes these proposals.

  2.   Context—The Adults With Incapacity (Scotland) Act 2000: Notes that there have been difficulties with the timescale of implementation. Details the main elements of AWI Act.

  3.   Experiences in Implementation of the Adults With Incapacity (Scotland) Act 2000: This emphasises the importance of the principles of AWI Act. Inconsistency in implementation is identified along with some areas of confusion, particularly in relation to the part dealing with medical treatment. Key issues from the recent consultation into this part of the Act are highlighted.

  4.   Key Issues for Clinical Psychologists arising from the Adults With Incapacity (Scotland) Act 2000: The key issue discussed is how capacity is being assessed. The complexities of such assessment are identified along with the need for specialist assessment in some circumstances. Advice is given on when a psychological assessment should be sought. The need for clearer standards in the assessment of capacity is discussed. The importance of communication is emphasised along with the importance of proactive approaches to enhancing capacity.

  5.   Key Differences between the Draft Mental Incapacity Bill and the Adults With Incapacity (Scotland) Act 2000: The requirement of a certificate of incapacity for active interventions in the AWI Act is noted as the most significant difference and the implications of this are discussed, in particular the importance of how "reasonably believes" is defined and applied. It is suggested that some form of certification should be required in some areas. The apparent greater emphasis on communication in the AWI Act is noted along with differences in the Court system. Differences in relation to dispute resolution and consent to participation in research are also identified.

  6.   Lessons to be learned from the Adults With Incapacity (Scotland) Act 2000: These identify that: the pace of implementation is crucial; there is likely to be a requirement for a huge investment in training; there is a significant need for clarity on the different levels of assessment which will be applied under the Bill; interpretation of the Bill will change over time, and that detail of the practicalities of intervention under the Bill in the codes of practice will be beneficial.

  7.   Additional comments on the Draft Mental Incapacity Bill: The importance of interpretation of the language used in the Bill is identified. It is suggested that there are benefits in Visitors from psychology and speech and language therapy being included. Concern about monitoring of abuse of the powers in the Bill is noted. The need for a substantial research programme is highlighted. Appendices are provided on assessment of capacity, "best interests", and references.

  (1)  The BPS Division of Clinical Psychology (Scotland) has been invited to provide a response to the consultation on the above Bill, with particular reference to the lessons that can be learned so far from the implementation of the Adults With Incapacity (Scotland) Act 2000 [AWI Act].

  (2)  Although there are a number of teething problems with the AWI Act it has been welcomed as a significant improvement on what went on before and has clearly enhanced the rights of vulnerable adults and their carers. It is encouraging that similar safeguards are planned for individuals in England and Wales.

  (3)  As no formal study of the implications of AWI Act for psychologists has been undertaken, and current general research projects into the Act have not yet reported, this response is somewhat anecdotal, but reflects the experience of a number of senior practitioners in clinical practice.

  (1)  The AWI Act was the first piece of legislation introduced by the Scottish parliament.

  (2)  There is a perception that, with hindsight, the Act was introduced before appropriate systems were fully in place.

    (a)  Some parts of the Act were introduced before the Codes of Practice

    (b)  The planned dates for implementation of the Act were delayed

    (c)  Although there has been a huge investment in awareness training, the experience of this has often been that participants were left with a lot of unanswered questions about the specifics of how the AWI Act should be implemented in practice.

  (3)  AWI consists of 6 parts

    Part 1  General principles & administrative systems

    Part 2  Continuing powers of attorney (commenced 2 April 2001)

    Part 3  Accounts and funds (commenced 2 April 2001)

    Part 4  Management of residents' finances (originally due April 2002, commenced 2nd June 2003)

    Part 5  Medical treatment and research (originally due Autumn 2001, commenced 1st July 2002)

    Part 6  Intervention orders & Guardianship orders (commenced 1 April 2002)

  (4)  Whilst clinical psychologists may become involved in providing assessment or advice relating to all aspects of the AWI Act, the greatest involvement has related to Parts 5 and 6.

  (1)  The general principles of AWI are emphasised strongly in the legislation.

  All decisions made on behalf of an adult with impaired capacity must:

    —  benefit the adult;

    —  take account of the adult's wishes, if these can be ascertained;

    —  take account of the views of relevant others, as far as it is reasonable and practicable to do so;

    —  restrict the adult's freedom as little as possible while still achieving the desired benefit;

    —  encourage the adult to use existing skills or develop new skills.

    (a)  These principles have become well established with health and social work professionals and the emphasis on them is viewed very positively.

    (b)  There would appear to be a significant benefit in the principles of the Act being prominent in this fashion.

  (2)  There is a great deal of inconsistency across the country in how the AWI Act is being implemented in practice.

    (a)  Some clinical psychologists are now regularly being asked to provide detailed assessments of capacity by doctors in relation to medical treatment and by social workers in relation to potential applications for Guardianship or Intervention orders. Clinical psychologists in other areas working with the same client population have had no such requests.

    (b)  In some areas requests for assessment appear to being made whenever a Certificate of Incapacity is being considered (in some cases even when it would appear abundantly clear that the individual is incapable). Other areas refer only when complex issues are involved.

  (3)  It is clear in the Code of Practice to Part 5 of the AWI Act that "medical treatment" is defined as including "any procedure or treatment designed to safeguard or promote physical or mental health" and that this includes psychological treatment, however:

    (a)  There is confusion about the level of psychological intervention (particularly indirectly through carers) which requires certification under the Act.

    (b)  Due to this confusion there is little evidence of psychologists proactively seeking certification by medical practitioners for psychological interventions (and in some cases where such certification has been sought this has immediately been dealt with by the GP by them referring back to that clinical psychologist for an assessment of capacity!).

    (c)  The level of familiarity with the detailed requirements of the Act is in need of enhancement across a range of healthcare staff.

  (4)  Guardianship and Intervention orders are being increasingly used, although there is still a lot of learning to be done as to how they can be used most effectively to promote the rights and safety of individuals. There is also:

    (a)  some evidence of the "threat" of Guardianship being used to promote co-operation with intransigent relatives;

    (b)  inconsistency across local authority areas in the use of these measures.

  (5)  Part 5 of the AWI Act is generally recognised as requiring further revision as evidenced by the recent consultation exercise on possible revisions (responses currently being analysed). Of greatest interest to psychologists in this consultation were questions relating to:

    (a)  The principle of proportionality which would allow different levels of assessment to be applied which would reflect the implications of treatment and interventions of a greater or lesser gravity. We would welcome the introduction of a variable assessment procedure which would reflect the scope and degree of the intervention or treatment proposed. This could mean that referrals to clinical psychologists would focus on cases where there was borderline capacity, conflict, other complex or complicating issues, or where a full multi-disciplinary assessment was in the person's (or public) interest.

    (b)  Whether it would be possible for someone other than a registered medical practitioner to sign a certificate of incapacity. We would welcome this provided appropriate safeguards were in place in line with the variable assessment procedure above.

  (1)  The most significant issue is how capacity is being assessed.

    (a)  The onus of assessment of capacity falls on registered medical practitioners, many of whom have very little contact with some of the groups of vulnerable adults for whom incapacity is an issue.

    (b)  There is even evidence that specialist medical practitioners can be inconsistent in their assessment of capacity (eg Shah & Mukherjee, 2003), although there is no available research on this in the context of the AWI Act.

    (c)  Practitioners who are unfamiliar with the psychological complexities of these client groups may be unfamiliar with the implications of acquiesence, suggestibility, emotional maturity, cognitive bias, cognitive schema and communication difficulties in relation to such assessment.

    (d)  The BMA in their guidance on ethical and legal issues in Scotland (see annex 1) specifically highlight the need for referral for psychological assessment in complex cases. This is adapted from the Code of Practice for Part 5 of the Act (which in turn is derived from a paper by Clark,2000), but with the advice that this be carried out specifically by a psychologist being added to the statement in the Codes of Practice.

  (2)  There needs to be clarity on when a psychological opinion is sought.

    (a)  Clinical psychologists are a relatively scarce resource, often carrying long waiting lists. For example there are less than 40 qualified psychologists working with people with learning disabilities in Scotland. To allow a timeous assessment service it will be necessary to focus this on the individuals where such specialist assessment is most appropriate.

    (b)  As indicated above it is suggested that it would be appropriate to focus on cases where there was borderline capacity, conflict, other complex or complicating issues, or where a full multi-disciplinary assessment was in the person's (or public) interest.

  (3)  Although psychologists are well placed to use their clinical skills in the assessment of capacity, it has become clear that there is a need to develop clearer standards to ensure consistency of approach.

    (a)  As each assessment of capacity has to be individualised and decision-specific it is unlikely that any single assessment package will be appropriate to assess capacity.

    (b)  However, agreement on the introduction (or development) of "standard" assessment measures is likely to be beneficial (eg Arscott et al.,1999; Grisso & Appelbaum, 1998) in so far as these can provide a consistent structure to assist clinical decision making.

    (c)  These could be enhanced by the development of assessments which are specific to particular types of decision, such as those developed by Suto et al., 2002, in relation to financial decision making and Wong et al., 2000, which focussed on capacity to decide about having a blood test.

    (d)  The creative, individualised approach to assessment of capacity for specific decision making would continue to be available as the most specialised approach to assessment.

    (e)  The provision of structured algorithms/assessment models for other professionals, such as GP's could be of benefit in guiding them through the assessment of capacity with individuals where it is not an obvious decision, and could identify cases where more specialised assessment was required.

  (4)  The AWI Act is very clear in putting an emphasis on the assessor to ensure that they make every effort to enhance communication with the individual

    (a)  This requires greater use of Speech and Language Therapists, and others who may enhance communication with individuals to ensure a person centred approach.

    (b)  There is a need to produce information about medical (and social welfare and financial) interventions in ways which are accessible to people with communication difficulties.

  (5)  Despite one of the key principles of the AWI Act being that of encouraging the adult to use existing skills or develop new skills there is currently little evidence of any work on the enhancement of capacity being reported. Education strategies will clearly be able to enhance the capacity of some individuals (for example, those who have recently moved out of institutions).

  (1)  It is encouraging that most features of the AWI Act and the Bill are very similar apart from labels and level of emphasis, however,

  (2)  The requirement that a certificate of incapacity be provided in relation to any active intervention under the Scottish Act is probably the most significant difference.

    (a)  Although there have been some practical problems in the provision of certificates of incapacity this does ensure that there is formal record in a standard format of such a decision having been taken.

    (b)  This has developed from the original proposals regarding certification to a position now where this certification can specify a range of elements in the treatment plan for an individual and can include fundamental healthcare procedures.

    (c)  The absence of such a certification in the Draft Mental Incapacity Bill does lead to concern about the process of decision making, especially where the standard of assessment is that the person "reasonably believes" that the individual lacks capacity.

      (i)  In this case the definition of "reasonably believes" is absolutely crucial to the equitable application of the powers under the general authority.

      (ii)  There is a significant risk that the quality of decision making will be a reflection of the ability of the assessor (who in many cases will be unfamiliar with the issues highlighted in 4.(1)(c) above, rather than of the capacity of the individual concerned.

      (iii)  Pragmatically, this may be of less significance in relation to low level interventions (and there are probably advantages in not requiring certification for these), but as interventions become more intrusive the need for standardised formal recording increases.

      (iv)  There is potentially a risk of individuals with "overpaternalistic" attitudes being very ready to take decisions on behalf of a person on the assumption that it must be in their best interests.

  (3)  There appears to be a greater emphasis on the importance of enhancing communication in the AWI. This is crucial in protecting the rights of individuals who otherwise erroneously might be deemed incapable of decision making, when the fact is that the assessor has failed to communicate effectively.

  (4)  The AWI has not led to the development of a specialist Court system as is proposed in the Bill. It is anticipated that this will be watched with great interest. It does appear however that the Scottish system is potentially more accessible as the Code of Practice for Part 5 states that "Anyone having an interest may apply to the Court of Session for a determination as to whether treatment should be given or not", whereas the Draft Bill appears to be more restrictive in defining who can intervene.

  (5)  It is unclear how disputes in relation to decisions about medical treatment are to be resolved, whereas this is detailed very clearly within the AWI Act and associated codes. However, the role of medical visitor is also different, and again we feel this will be watched with interest as to the precise nature of the role.

  (6)  The AWI has a range of specific requirements in relation to research with adults who are incapable of consenting. It is not clear how this will be dealt with in relation to powers under the Bill.

  (1)  The pace of implementation is crucial.

    (a)  It is important that all of the necessary documentation and training is in place before the Bill is implemented (and the experience of Scotland is that this will take much longer than anticipated).

  (2)  There is likely to be a requirement for a huge investment in training.

    (a)  It is important that in addition to training in the general operation of the Bill there is a national programme of training in the specific application of the elements of the Bill.

    (b)  If this is not done it is likely that a wide range of local interpretations will develop which will inevitably lead to inequity.

  (3)  There is a significant need for clarity on the different levels of assessment which will be applied under the Bill.

    (a)  This should include the development of a range of assessment materials which will be available to decision makers to ensure consistency in applying the tests of capacity specified in the act. It is clear from the Scottish experience that these "high level" principles of assessment are not enough in themselves when it comes to making complex decisions about peoples lives.

    (b)  Many clinicians have highlighted a desire for clearer guidance on how to provide assessments.

    (c)  There should also be a clear process of assessment of capacity which highlights the situations in which specialist and/or multi-disciplinary assessment is required to ensure that the rights of an individual are protected.

    (d)  The models of assessment adopted need to be reliable, valid, flexible, reasonable, practicable, defensible, principled and the minimum intervention required to make the decision.

    (e)  Pragmatically, busy clinicians will benefit from having "off-the-shelf" tools which can be used to aid clinical judgement.

  (4)  It is important to recognise that this is a complex area and that as practice develops so will interpretation of how the Bill is to be best applied.

  (5)  The more details of practical interventions that are highlighted in the codes of practice the better.

  (1)  The language used in the Bill is extremely important, and how it is interpreted will have a very significant impact on the implementation of the Bill.

    (a)  It is therefore crucially important that there is clear guidance on what is meant by "Reasonably believes" as this is the foundation for much of the decision making involved in the Bill.

    (b)  The other very significant term is that of "best interests", which is defined in the Bill and described elsewhere as being a checklist. It is our belief that this would be further enhanced by incorporating the BMA guidance on "best interest" (see annex 2) with the addition of a statement indicating the need to consider the psychological well-being of the individual.

  (2)  The Bill specifies a role for Medical Visitors and General Visitors, both of which are welcomed. However consideration should be given to introducing other specialist visitors, specifically Clinical Psychologists (who are best placed to provide a specialised assessment of capacity in relation to both medical, social and many communication issues) and Speech and Language Therapists (who are best placed to provide specialised assessments in particular areas of communication). Both of these categories of professional visitors could operate in the same fashion as a Medical Visitor within their respective areas of expertise.

  (3)  In considering decision specific capacity it is important to consider the level of capacity which is required for different decisions and whether this is higher than that for the general population (see Murphy & Clare, 2003).

  (4)  The effectiveness of the Bill in achieving its aims will to some extent depend on how far professionals and carers who are involved in the care of vulnerable people are prepared to identify situations where the general authority is being used inappropriately. It is important in situations where significant lifestyle and medical decisions are being taken on behalf of another person that there is clear monitoring of this in place. This should not only be in terms of abuse and exploitation, but also in relation to overpaternalistic and overly risk-averse attitudes as this can also be damaging to the individual.

  (5)  There is a clear need for a substantial research programme to accompany the development of this Bill to ensure that it achieves its aims.

August 2003

Annex 1

  BMA website—

  Medical treatment for adults with incapacity: guidance on ethical & medic-legal issues in Scotland—2nd edition October 2002

  "Assessment of capacity

  Capacity is assessed in relation to a particular decision that needs to be made. An assessment of capacity is not based on the test "would a rational person decide as this person has decided?" Rather the thought processes behind the decision are relevant to the question of capacity. . . In cases where patients have borderline or fluctuating capacity, it can be difficult to assess whether the individual can make valid decisions on very serious issues. The BMA has published detailed practical advice about assessing capacity. In many cases there will, of course, be no doubt about a person's capacity. Where there is doubt, a comprehensive psychological investigation may be needed, which would seek to determine whether the adult

    —  is capable of making a choice;

    —  understands the nature of what is being asked;

    —  understands why a choice is needed;

    —  has memory abilities that allow the retention of information;

    —  is aware of any alternatives;

    —  has knowledge of the risks and benefits involved;

    —  is aware of the decision's personal relevance to him or herself;

    —  is aware of his or her right to refuse, as well as the consequences of refusal;

    —  is aware of how to refuse;

    —  is capable of communicating his or her choice;

    —  has ever expressed wishes relevant to the issue when greater capacity existed; and

    —  is expressing views consistent with previously preferred moral, cultural, family, and experiential background.

  A patient's abilities can fluctuate because of a range of factors, including medical condition, medication, time of day or mood. Doctors have a general ethical duty to enhance capacity when it is possible to do so, and should seek to engage patients in decision making when they are best able to participate.

  Doctors constantly assess whether patients have the capacity to make the decision they are faced with. Mental abilities can be influenced by both medical and psychiatric conditions. Any doctor should, however, be able to take a psychiatric history and to conduct a basic mental state examination in order to define straightforward abnormalities irrespective of their cause. Many people can be assessed by their own GP. Indeed a close, long-term acquaintance with the person being assessed may be an asset, particularly if the person is more relaxed with a familiar doctor. Where the person's capacity is borderline, however, or the treating doctor does not feel able to make an objective assessment, specialist advice should be sought."

  [bold type for emphasis—not in original].

Annex 2


Card 8—Determining "best interests"

  A number of factors should be addressed including:

    —  The patient's own wishes and values (where these can be ascertained), including any advance statement;

    —  Clinical judgement about the effectiveness of the proposed treatment, particularly in relation to other options;

    —  Where there is more than one option, which option is least restrictive of the patient's future choices;

    —  The likelihood and extent of any degree of improvement in the patient's condition if treatment is provided;

    —  The views of the parents, if the patient is a child;

    —  The views of people close to the patient, especially close relatives, partners, carers or proxy decision makers about what the patient is likely to see as beneficial; and

    —  Any knowledge of the patient's religious, cultural and other non-medical views that might have an impact on the patient's wishes.

  We would suggest that a statement relating to the impact of the proposed intervention on the psychological well-being of the individual should be added to this list.

Annex 3


  Arscott, K, Dagnan, D & Stenfert Kroese, B (1999), "Assessing the ability of people with learning disability to give informed consent to treatment", Psychological Medicine, 29, 1367-1375.

  BMA website—medical treatment for adults with incapacity: guidance on ethical & medic-legal issues in Scotland 2nd edition October 2002

  BMA website—BMA Consent Tool Kit Second edition February 2003 Card 8—Determining "best interests"

  Clark, A (2001), "Consent issues when working with people who have a learning disability",Working with People who have a learning disability, 18, 8-14.

  Grisso, T & Appelbaum, P S (1998), "Assessing Competence To Consent To Treatment". New York: Oxford University Press.

  Murphy, G & Clare, I C H (2003), "Adults capacity to make legal decisions", in Bull, R & Carson, D, Handbook of Psychology in Legal Contexts (2nd edition), Wiley.

  Suto, W M I, Clare, I C H & Holland, A J (2002), "Substitute financial decision-making in England and Wales: a study of the Court of Protection", Journal of Social Welfare and Family Law,24, 37-54.

  Shah, A & Mukherjee, S (2003), "Ascertaining Capacity to Consent: A survey of approaches used by psychiatrists", Medicine, Science and the Law, 43,231-235.

  Wong, J G, Clare, I C H, Holland, A J, Watson, P C & Gunn, M (2000), "The capacity of people with a `mental disability' to make a health care decision", Psychological Medicine, 30,295-306.

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