Examination of Witnesses (Questions 49-59)|
10 SEPTEMBER 2003
Q49 Chairman: I believe you were
in the audience when we started. May I welcome you. I do apologise
about the timing, you realise it was out of our hands, it was
what was happening in both chambers. If you would like to introduce
yourselves, and, if you wish, make a short statement then we will
proceed to questioning.
Dr Lyons: We have decided we will
not make statements, I do not think we have anything to add to
the statement that Mr Ward made. We would rather answer the questions
that the ladies and gentlemen would like to ask us. I will introduce
myself and then I will ask my colleagues to introduce themselves.
My name is Donald Lyons, I am a consultant psychiatrist. I specialise
in the care of people with dementia. I have been the spokesperson
for the Scottish Division of the Royal College of Psychiatrists
on the Adults with Incapacity Act in Scotland and a member of
the National Steering Group for implementing the Act.
Dr Bowden: I am Keith Bowden,
I am a Consultant Clinical Psychologist with Forth Valley Primary
Care NHS Trust. I specialise in working with people with learning
Professor McMillan: I am Tom McMillan,
I am a Professor of Clinical Neuropsychology at the University
of Glasgow. My areas of interest are in part brain injury and
the rehabilitation of brain injury. I am seconded two days a week
to the Glasgow Health Board where I advise them on the development
of services for brain injury rehabilitation in the Glasgow area.
Mr Ramm: My name is Mark Ramm,
I am a Consultant Clinical Psychologist at the Orchard Clinic
in Edinburgh, which is a hospital for mentally disordered offenders
who are the detained under the Mental Health Act. I am also the
British Psychological Society's representative on the Reference
Group in Scotland which is looking at the implementation of our
recent new Mental Health Bill.
Q50 Chairman: I would like to ask
the first question, you will find these questions somewhat familiar,
what advantages are there in requiring evidence of a defined mental
disorder as a diagnostic threshold above and beyond a person's
capacity? Is it important to maintain consistency in definitions
between Mental Health and the Mental Incapacity legislation?
Dr Lyons: As you will have heard
from Mr Ward the definition of mental disorder as contained in
the Adult Incapacity Act is exactly the same as the definition
of the mental disorder contained in the Mental Health Act, and
that until recently has been "mental disorder" or "mental
handicap" however caused or manifest. This is a wide-ranging
definition of mental disorder. There was a lot of discussion leading
up to the new Mental Health Act as to whether the definition of
mental disorder legally should be narrowed and the answer eventually
was no it should not. It remains wide. As with the Mental Health
Act, the Incapacity Act has the additional test of capacity in
that the adult must be incapable of acting or making decisions
or communicating decisions or understanding decisions or retaining
the memory of decisions. That is the test. Many people with mental
disorder will not pass that test of incapacity and there is a
grave, grave danger that we must all guard against that is written
in great big letters "do you not assume an incapacity because
a person happens to have a mental disorder". Concentrating
on whether the person does or does not have a mental disorder
is maybe the wrong way to look at it. There has to be something
causing the incapacity, mental disorder is one, an inability to
communicate is the other. The critical bit is the test of capacity,
and that is what we must concentrate on.
Q51 Chairman: Is that the same point
as the assumption in our draft Bill, there is capacity until proved
Dr Lyons: That is a clear assumption
Q52 Chairman: Do your colleagues
wish to comment on that first question?
Dr Bowden: The importance of the
functional test of capacity cannot be over-emphasised. It is very
important in the Scottish Act that it is about decision-specific
capacity. I think there is a danger if we start using terms like
"incapacitated adults". We need to be very careful that
we do not move into a situation where we are assuming people have
or do not have capacity per se. It is important that it is about
specific decisions, and that may be about specific decisions at
different times in a person's life. It may be that at one stage
in a person's life they are able to make that decision and at
another time, perhaps because of their emotional state or their
other circumstances, they may not be able to make that decision
at that time. It is important that the legislation is robust enough
to deal with that situation and to identify that.
Q53 Mrs Browning: In practical terms
how do you deal with people whose conditions means they demonstrate
variable capacity as a result? If I can give you a couple of examples:
in the case of people with autism, even people high-functioning
autism, their ability to conceptualise something is pretty limited.
If you give them choices, "Would you like to do A or B?",
and if that is not within the ambit of their own personal experience,
they would have huge difficulties. They may even make a choice
that would be totally inappropriate purely because they have not
been able to conceptualise it. There are practical ways of going
through that, if you were saying, "Do you want to go and
live in A or live in B?", you overcome it by taking them
to A or B rather than sitting around in a case conference. For
example, with schizophrenia where people may be going through
an episode at any given point in time but later on may be in a
recovery situation. How in practical terms do you deal with those
Dr Bowden: I think the principle
of minimum intervention is one of the important elements with
the Actand I am speaking as a clinicianthat we should
be intervening at the minimum level to assist that decision-making.
An important emphasis in the Scottish Act is that the onus of
communication is placed on the health professional, that we should
be seeking to communicate with the individual in the most effective
way to ensure that their contribution to the decision-making process
is as much as it should be. With a person with Asperger's, for
example, it is about specific time-related decision making and
it may be that at one point we do need to implement the certificate
of incapacity and take that decision on behalf of the individual
whilst acknowledging as much as we can about what their desire
is. On another occasion when we have been better at communicating
or finding a way to assist that person to make that decision then
they have the capacity to make that decision and we should follow
Q54 Lord Pearson of Rannoch : Would
you accept that, although mental health as a category can move
forwards and backwards in various degrees over time, there are
some people who are so mentally handicapped, with such severe
learning difficulties and intellectual impairment, however you
want to compromise, they will never be able to make decisions
for themselves or something of that kind. Would you accept there
are people in that category?
Mr Ramm: There are many situations
where it is very easy to make the decision they have a lack of
capacity. I think that the legislation works very well in relation
to be able to deal with their needs and the needs of their carers.
What is often more problematic is there can be an assumption by
many that that is always an easy decision and there are many,
many situations where deciding whether somebody has capacity or
they do not is very difficult. There are many borderline cases,
as has been observed. There are cases where a person's level of
capacity to make decisions for themselves will change over time
and there are many cases where a person will be capable of making
a decision for themselves in one area, for example financial affairs,
and not in another. Because of these more complicated cases what
is required typically for clinicians and the individuals involved
in the operation of the Act are very clear guidelines and very
clear processes on which to make these decisions.
Chairman: We will to break for ten minutes.
There is a vote in the Lords.
The Committee suspended for a division.
Chairman: We can now proceed.
Q55 Baroness McIntosh of Hudnall:
Sorry about the interruptions. Just picking up from the discussion
that was going on before we disappeared, on the question of how
you define incapacity and in what situations and so on, in our
draft Bill there is clause 2.1 which lists some ways of testing
whether a person is unable to make decisions. Is it your view
that this is a helpful list? Is it comprehensive? Will it assist
you as clinicians in making the decisions that you have to make?
Dr Bowden: I think there is a
similar difficulty with this list as with the adults in the Incapacity
Act in terms of the specificity that is involved in this estimate.
I think it operates very well in terms of the straightforward
decisions where it is very clear that someone has capacity about
a decision or indeed where it is very clear that someone does
not have incapacity about that decision, but in terms of the more
complex decision-making that I as a psychologist would be involved
in assessing, apart from giving me a general structure under which
to operate, it does not really give me the gold standard of assessment
that I would look for to give advice as to what that decision
Q56 Baroness McIntosh of Hudnall:
Can you say what is missing from it, is there an obvious thing
that is missing from it, or is there something in your legislation
that you would want to see included?
Dr Bowden: I think it is about
the Codes of Practice and the level of detail that comes in in
the Codes of Practice. I think the high level operation of this
is fine, but it is about how that is applied in practice and I
think our experience is that different practitioners are interpreting
this sort of high level statement differently in the way they
apply it in practice, so the key is about further definition and
detail at the Codes of Practice level.
Dr Lyons: May I make a quick point
about that. Medical practitioners will like this definition and
I know where it comes from because it is almost a direct lift
from the Broadmoor Hospital case. For that reason, because it
pertains to a judgment of medical treatment, doctors will quite
like and will operate this quite well. I actually quite like it.
I have to say I probably like it more than I like the Scottish
definition. The thing that is missing from this definition is
that the person may be able to make a decision but may not be
able to secure his interests by acting on this decision. Mr Ward
mentioned that earlier and that is something to think about. That
is in the Scottish definition, it is not in this. The other comment
I would make about this is not so much in 2.1 it is more in 2.4.
As I specialist this particularly interests me and it concerns
the question of memory. The draft Bill is quite right to say that
a person shall not be regarded as incapable because he or she
does not spontaneously remember the decisions. I had an outpatient
clinic on Monday and I do not remember the decisions that I made
there, but I wrote them down and with a bit of luck I will go
back and be able to read my writing and I will agree with what
it was. That is the key, that there has got to be some degree
of consistency to the decision-making. The person must either
make the same decision consistently given the same information,
and/or when presented with a record of that decision they have
to recognise that decision as their will. That is the issue of
memory decision-making to my mind.
Professor McMillan: If I could
add to that. The point seems to me to be the person has to retain
information long enough to be able to make the decision because
you can then return to the issue and check whether the decision
is consistent. So it is not being able to remember the information,
it is remembering long enough to make the decision. There are
quite a few patient groups where that will be an issue. They can
retain information but only for a short period of time.
Q57 Chairman: How do you handle the
situation where a person retains the information and they welcome
the decision and then they forget all about it and you come back
to implementing the decision and they say, "This is all wrong
I do not want to do this." What happens then? Is that person
Dr Lyons: That person is not capable
if there is no consistency to that person's decision-making. My
opinion then is that that person is not capable.
Dr Bowden: Unless they are able
to give reasons for that change of decision.
Lord Rix: Surely, yes, that must be right.
Q58 Stephen Hesford: Just on the
back of that answer, which I must say I personally found very
helpful, can I just ask the panel having practised the Scottish
version and having look at our version in simple yes or no terms
which would you rather practise under?
Dr Lyons: Shall we take a vote
chaps? Ring the division bell at this point!
Mr Ramm: Speaking personally there
is no doubt in my mind that I would much rather work under the
Scottish Act. I think there are advantages in several areas. We
were hearing before about the general principles. I think they
are a very important aspect of the legislation and they are very,
very helpful for clinicians and for everybody in terms of interpreting
how it should be applied and what they should be doing. I think
one of the other advantages of the Scottish legislation at present
is the issue of granting certificates of incapacity. There is
something important, I believe, about there being something within
the system that allows a more careful analysis or assessment for
issues which have a higher importance or threshold, because there
is a threshold issue. Obviously in practice one would not want
to make it too difficult for a GP and a family to care for, say,
an elderly relative in terms of administering their finances.
One would not want to make that too difficult for them to organise
between them, but if the relatives for example were to decide
that they were going to sell the relative's house, at that point
the whole issue would deserve a much more careful assessment of
the person's capacity in relation to deciding that issue. The
certificate in Scotland makes it much clearer when there should
be a multi-disciplinary assessment and the nature perhaps of this
Q59 Stephen Hesford: Thank you. Do
you all share this view?
Dr Lyons: Let us be clear on the
question that is being asked here. Is the question that is being
asked purely about the definition of "capacity" or about
the Scottish Act and the drafting of this Bill in general?