Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 160-179)



  Q160  Baroness Knight of Collingtree: So the Bill would have protected her?

  Mr Broach: I think the Bill would have protected her right to make that decision for herself.

  Q161  Stephen Hesford: I apologise for missing yesterday's session, so there is perhaps an absence of knowledge on my part, but I think I am picking up the drift. What I am worried about so far is that there seems to be an element of confusion in what is being said which I am not entirely happy is helpful to the Committee. You asked about the checklist, but I am not sure that has been addressed at all, the idea of whether the checklist is sufficient. The other is that there seems to be a confusion between assessing whether somebody has incapacity and then, if somebody has incapacity, what then you can do about it. The decision as to whether someone has incapacity or is incapacitated in some way to bring them within the Bill is a different stage from addressing best interests and so far it seems to be rolled up.

  Mr Broach: Perhaps we should try to untangle it.

  Q162  Stephen Hesford: Yes, for me at least.

  Mr Kramer: I will deal with the first point because that is easy and it will give us time to think about the second. We do think that the best interests checklist is important. What is not clear in the Bill is the priority in terms of the checklist, what should be given priority in terms of that checklist, and the starting point is to support the person to make their decisions and make sure they have all the information to do so, so that is not in there. The other point that is not in there is the concern about supporting people who may have severe learning disabilities to make decisions who may be able to indicate their wishes through changes in behaviour and I think that is an important issue that is not included in the Bill, that someone may demonstrate pain and distress that they do not want to do something and that may be exhibited in changes in behaviour. If we are about supporting people with profound learning disabilities to make decisions, I think that is a very important factor that has to be taken into account. The third one is about the need to take into account issues around cultural values as well. If we are respecting people's diversity, then I think we also need to respect their whole makeup and their cultural factors which may influence their decision-making.

  Q163  Stephen Hesford: I still think that that has the confusion of putting the two things together. Are you saying that clauses 1 and 2 should be amended in some way in seeking to address the issue of if somebody suffers from incapacity?

  Mr Broach: No. Our argument is that, as with the Scottish Act, there are principles, but essentially clauses 2 and 4 together form the principles of this Bill, but actually for us clause 3, presumption against the lack of capacity, is the fundamental principle, so the way it works for us is that we presume that a person has capacity, we then assess that capacity and we allow them to make their own decisions and we ensure that they are supported to make decisions and if they still cannot make decisions, then the checklist in clause 4 would apply.

  Mr Kramer: But the prominence given to best interests has led to confusion about whether it is going to restrict people's right to make decisions and that is why the presumption has to come first and move clause 3 to the start of the Bill.

  Q164  Chairman: Is the problem that this Bill entirely has a functional approach, whereas the Scottish Bill starts off with the principles and then you build the functional approach on to that? Is that your concern?

  Mr Kramer: Yes, if you were to ask us what is the overriding principle the equivalent to the benefit for the individual, we would say the right to make decisions that they are capable of making and to be supported in doing so and that is lost in the Bill because if you look at it, someone could go to clause 4 and ignore clauses 2 and 3.

  Q165  Baroness McIntosh of Hudnall: Would that lead you to suggest that the title of the Bill is wrong?

  Mr Broach: Yes.

  Q166  Baroness McIntosh of Hudnall: And what would you suggest it should be?

  Mr Broach: We have suggested that it is amended to "Mental Capacity".

The Committee suspended for a division.

  Q167  Mr Burstow: It has partly been picked up already, this question of the insertion of the word "personal" to "best interests" as the test and I think partly Stephen's question helped to unpick this a bit, that by putting the presumption of capacity at the beginning of our thinking does help clarify it in that "best interests" does not apply if you have got capacity. What I am still not clear about is if the tests around capacity apply and a person is found to lack specific capacity to take a particular decision or general capacity and then "best interests" applies, how materially for someone looking at the legislation and looking at any codes that are produced as a result of it would act differently if the word "personal" was there? What would be the specific things that would lead them to act differently? Is there any previous legislation where this has been used and, as a consequence, has a different effect? It really would be very helpful if you could give us some sort of sense of how this is not just semantics and is actually substance.

  Mr Kramer: I will try to give an example to answer the first point. If somebody with a learning disability needs medical treatment and he lacks capacity to consent to that treatment, a decision on the medical treatment would be taken on the best interests. Although that person may not be able to understand the nature of the operation or the consequences, you may be able to bring best interest factors that may bear on the medical treatment decision, for example, an individual who has a profound distrust and fear of needles and that fear and distrust of needles could be reflected in the medical decision-making process so that an alternative way of carrying out the treatment could be found. Actually the best interests about encouraging people to participate and taking account of past and present wishes could have a direct bearing on that particular medical treatment that is being proposed. Does that help at all?

  Q168  Mr Burstow: No, it makes me more puzzled because in none of that did you use the word "personal" and, therefore, I want to ascertain how applying the word "personal" it would be different because the clause, clause 4, does, in (2)(c)(i), specifically talk about what you have just said, wishes and feelings, so that is there in the context of best interests, so can you help me one step further to understand how adding the word "personal" will make that list of things be read differently?

  Mr Kramer: Because I think it would change the approach and the attitude to best interests because people would think in terms of the decision relevant to that individual, "What do we have to think about?" rather than thinking what is in the interests. If that person needs treatment, someone could say, "Well, that person lacks the capacity, so it is in their best interests to have treatment", and yet if someone who is involved with that person lacks the capacity to consent, how can we take account of past and present wishes. Actually if the terminology is changed and it says "best personal interests", it may think about the nature of the operation, thinking about the individual and having a much more person-centred approach to the treatment.

  Q169  Mr Burstow: But is this not so much a question of the wording on the face of the Bill, but actually the codes of practice and the training that underpins it?

  Mr Broach: Yes, it is, and that is absolutely crucial. However, we would like to see, as the Alliance, that it refers as many times as possible that it is about the person that is in the centre of the decision, so in that sense alone we think it is significant. It is also incidentally a recommendation made by the Law Society in terms of the technical question around other legislation which may include "best personal interests" which may be addressed to them. In terms of the checklist itself, there are, I think, some possible amendments and improvements that could be made. In 4(2)(b) the best interests test includes "the need to permit and encourage him to participate, or to improve his ability to participate", and that could be defined and unpicked further, I think. One of the things we would add in there is advocacy which I am sure we will talk about in more detail later on. We would argue from the very beginning there that improving a person's ability to participate in decisions may well involve an advocate actually working with them to support their communication.

  Mr Kramer: Just in terms of personal interests, if it said "personal interests", people would be more minded to think about whether that person has enough information to make a decision and whether people have the time and support to make a decision. Can we not move away from this feeling that someone cannot make a decision because they have not been able to do that in the past? It would mean less focus on whether a decision is reasonable in the interests of somebody else, so I think it is not just a question of terminology, but I think it can make a big difference in terms of how the Bill is applied.

  Q170  Mr Burstow: The answers you have given seem to mix tests of capacity with tests of best interest and we need to make sure in the evidence that we are getting and the answers we are getting that we are picking those two apart so that we take the sequence in which they are being dealt with. It seems that you are conflating the two. Does that make sense? That is what it seems to me at the moment.

  Mr Broach: That is a fair criticism and I think the fundamental point around "personal best interests" is that best interests could be looked at in a number of different ways and we want them to be looked at in the interests of the person in question and that is the reason we have made that recommendation.

  Q171  Mr Bercow: I must say, I do not actually think we are greatly advanced or having much joy listening to the evidence you have given, but Paul Burstow beat me to it and posed the question which was very much in my mind. Presumably your problem with the concept is clear enough and, therefore, you want to make it in practice specific rather than unspecific, personal rather than amorphous, yet for all that, if you will forgive me saying so and this is intended to be constructive, it seems to me that the information does more to obscure than it does to clarify. In fact if we were to be persuaded that "personal" was not just a sort of emotional cushion, but something rather specific and practical, I think we would need more and better examples than what seem to me is the rather vague notion you have just advanced. I am sorry if I am being incredibly unfair or if colleagues think I am being very obtuse, but for me as a lay person it does not really advance matters at all. It is an additional word, but not an additional reason.

  Mr Broach: There is an example, another one which may help. People with autism, many of them experience sensory oversensitivity. They are very, very sensitive to touch and may feel things far more sensitively than others do and, therefore, their treatment should take into account that sensory sensitivity. It is a similar example, I suppose, to Richard's around the fear of needles, but perhaps a more general one for my client group. Therefore, in a general best interests sense it may be appropriate to treat them in a certain way, but you would want to take account of their personal best interests and look at their personal circumstances which included this sensory oversensitivity and, therefore, a certain other type of treatment may need to be found.

  Q172  Lord Pearson of Rannoch: I wonder if I could take you back to that category of people Mr Kramer referred to earlier with severe learning disabilities or mental health and, therefore, intellectual disability or impairment or handicap, whatever you want to call it. I think you indicated that changes in behaviour might indicate what people want. Of course that may be or may not be and it would depend on the individual, I suppose, but if we take clause 4(2)(d)(ii), it says, "In deciding for the purposes of this Act what is in a person's best interests, regard must be had to (d) if it is practicable and appropriate to consult them, the views of (ii) any person engaged in caring for him or interested in his welfare". In those circumstances, where do you put the family in the pecking order, as it were, if there were to be a disagreement between family members who cared for him and thought they knew him best and the professionals? Do you have a view on, all things being equal, whether the family's views should come first or the professionals'?

  Ms Morgan: Clearly if someone has profound learning disabilities, the family are usually their strongest advocate and the people who have their interests at heart, usually, and, therefore, they need to have a strong say. Also in our work we have looked at the needs of people with profound learning disabilities and their wishes can be also ascertained alongside people who know them well and also by finding ways of communicating through objects of reference, using a coat to say, "We're going out", that sort of thing, and using pictures, sometimes using sign language depending on the people themselves. What I think would be also important and I feel we will be talking again about later is that sometimes there is also a need for advocacy to balance out the interests of the person and the family if there is disagreement and that it is very, very often the family where someone has a profound learning disability who would be likely to be their focus.

  Mr Broach: In terms of how the Bill would work in a situation where carers and professionals were in dispute, all of the organisations in the Making Decisions Alliance or the vast majority of these represent both carers and people with impaired capacity and one of our fundamental principles was that carers should have the right to be consulted in the decisions taken on behalf of the person they cared for.

  Q173  Lord Pearson of Rannoch: That is family carers?

  Mr Broach: That is right. If there was to be a dispute, then this Bill provides mechanisms, such as the court of protection, to resolve those disputes and it would be impossible to say that professionals or family carers should take the lead unless one of them has formal powers set out in the Bill such as the powers of a deputy or an attorney.

  Q174  Baroness Fookes: I was unconvinced yesterday and I remain unconvinced today that the word "personal" adds anything whatsoever to the terms of the Bill, but I understand what lies behind it and your concern that the best interests should be secured, but it seems to me that your concern about the needles is fully dealt with under 4(1) and (2)(c), that past and present wishes and feelings and other factors which should be considered totally covers the question of how you dealt with a great fear of needles. Would you in fact be happier if there were a code of conduct or codes of practice attached to this which would perhaps expand on what we have under clause 4, the best interests, and, if so, would you be interested, willing or able to give some kind of outline, not right now, but have you given any thought to codes of conduct in any detail?

  Mr Broach: Yes, we have. In terms of the detail of their contents, our focus has primarily been on the Bill to date and codes of conduct around best interests would be absolutely essential, and before that, as was set out in answer to Stephen Hesford's question, a code of conduct and assessment of how clause 2 would be put into practice would be very necessary. I think that certainly some of the subclauses around best interests do focus attention again on the individual. If I could just pick up that point about past and present wishes and feelings, we could go back again to the evidence given yesterday about the need for advance statements to have significant priority in the Bill because at the moment they are just grouped in amongst other potential expressions of wishes and feelings and actually if they were in there, then I think the focus on the person may be delivered through that route more effectively perhaps than just the addition of a word to the test.

  Q175  Baroness Barker: I too for the last couple of days, because of this word "personal", have been confused, although I understand what you are trying to get at. However, I have a deep fear and I would like your reaction to it, which is whether it is conceivable that the inclusion of the word "personal" sets out on the face of the Bill an almost inevitable conflict between the individual and those around him. I listened very carefully to what Ms Morgan had to say, that people who live with people all the time who have limited capacity often are best placed to understand their function over a long period of time, but can you convince me that by trying to do well for these people, we are not setting up that conflict?

  Mr Kramer: I do take your point that there is a difference of opinion in terms of the terminology and the impact it can make. I think just building on the previous question, what seems to be inseparable from the Bill is a change in attitude and approach which may need to accompany it. Yes, in terms of the term "best interests" it is in the Bill to take into account past and present wishes and other factors which would be relevant, but that is assuming that the Bill would be applied in practice and that will demand a change in terms of culture and attitudes. I think that is why my last attempt to make the case for "personal" is that it will exercise the minds of people and help create an atmosphere to change the culture. We have agreed, I think, that we need to rethink it because we accept the points which have been raised by the Committee today.

  Ms Morgan: If I can just add one more thing about "personal", the White Paper Valuing People of 2001, a core part of it is person-centred planning, so for people with learning disabilities a personal-centred approach is really there in the culture and being developed in the culture and for that reason I think it is consistent. I know it is not legislation, but it is a policy paper and for this particular group I think it is consistent with what is said in that White Paper.

  Q176  Baroness Barker: I would like to know, in your opinion, if the word "personal" did not appear whether the whole best interests approach should be abandoned in favour of the principle approach which was taken in Scotland? That is a big question, I know.

  Mr Broach: It is, but could I just attempt to answer your last question one more time. Conflict is the point, conflict between interests, and how that fits in with best interests. That is precisely why we think that the word "personal" needs to be added because if there is a conflict, and in reality there are conflicts between informed people, the professionals and the person themselves, then it is the person's best interests which should be at heart, so that is our final plea perhaps for the word "personal" to be included.

  Q177  Chairman: Are you saying that if in fact the principles in the Bill and the codes of practice were extremely well drafted, that would meet your concerns?

  Mr Broach: It is possible. We would want to think about whether essentially we prefer the Scottish approach or the English approach, bearing in mind this discussion. We will write to you on that.

  Q178  Mr Burstow: Moving on to clause 6 of the Bill and the general authority, we took some evidence from the Alliance yesterday on this, but it would be useful perhaps just to build on that and seek some further clarification. We have had representations from some self-advocacy groups like People First and they have told us that they see the Bill as meaning that people with disabilities would be bossed about and controlled about even more than they are already and they go on to express concern about the fact that there appear to be no mechanisms for complaining about or challenging decisions which have been made on their behalf. In evidence we had last week from the Scottish Law Society, we were told that this would be used retrospectively as a justification for what has occurred. What do you think could be done to meet those concerns from People First and the concerns from the Scottish Law Society about the introduction of this wholly new idea of a general authority?

  Mr Kramer: The starting point in terms of People First's concerns is that I think there was some concern that the accessible version of the Bill in fact did not explain the term "general authority" which was an issue which has led to a lot of concern amongst self-advocacy groups, and they feel very suspicious about why an accessible version of the term "general authority" was not referred to, so that is one concern. The other concern is about being clear what the general authority is for and the parameters for that and I know that the people from the Scottish Law Society were concerned about the general authority per se and I think it would be useful to explore the case for the general authority and then perhaps to look at the safeguards which may be needed. Their concerns about people not having to justify actions at the time a decision is made, but only when it is challenged, we do share those concerns and that is why we think there need to be additional safeguards. Would it be helpful if I take you through the argument about why the general authority?

  Q179  Mr Burstow: It perhaps would be helpful if you could say something about what the safeguards should be to allay that concern.

  Mr Kramer: In terms of the need for a general authority to act, I think many organisations representing carers have been concerned that they are unsure about how to make decisions which represent the views of people who lack capacity and they want clarity about what day-to-day decisions they can make without going to the courts for formal authorisation, so the general authority is positive in the sense that it will dispel the doubts and confusion from carers about what they can do. What it does not do is really set out what the limits are to the general authority at all and that, I think, is the major concern that ties in with People First and the Scottish Law Society. I think the point is that when the idea for the general authority was set out in the Law Commission Report Who Decides, it was felt that it would actually give recognition to day-to-day decisions and that they would be distinguished from more formal arrangements for authorising decision-making and that some decisions which would be reserved to the courts and others taken out of the court system altogether and that this Bill does not really clearly set out the limits of a decision that can be taken under the general authority. Therefore, in terms of the safeguards, I am slightly reluctant to talk about terminology because of personal interests, but I think it should say the "general authority to act reasonably" is the starting point because that in itself sets out the safeguard of the basis on which decisions should be taken, which is reasonably. Yes, it does say that in the rest of the clauses of the Bill, but I think it is very important that it says that in the terms of describing the general authority and how it would work. Then I think the scope of the general authority needs to be more clearly defined in the Bill. Now, part of that can be dealt with in terms of codes of practice and that might be very helpful in terms of changing practice in terms of carers and involving people in decision-making. Some other aspects are in terms of recording the general authority and recording decisions so that a person who is making a decision is able to justify the decision. That is particularly pertinent for care staff where there are already mechanisms whereby people can record decisions that they have made and, therefore, justify their decision. Another way of doing it is thinking about how can this Bill minimise opportunities for conflict and how can it maximise opportunities to reach agreement, and the problem is that the only way to challenge that general authority is to go to the court of protection, so other safeguards, such as recording decisions, looking at mediation and alternative dispute resolution, they are factors that provide extra safeguards. I do not know, Stephen, if you would like to add the specific restrictions that you want to see.

  Mr Broach: Again I need to set this out in context. The general authority in this Bill attempts to do two things. It attempts to provide the framework for the day-to-day decisions that Richard has outlined. It also attempts to give an emergency authority and many of the questions yesterday focused on what would happen if the emergency authority was not possible. I think it is very important that those two aspects are dealt with separately because it may be impossible to do both in the context of the general authority. In terms of day-to-day decisions we want the focus to go very much back on to the sorts of actions and decisions that are set out in the explanatory notes, things like cooking someone breakfast, taking someone out for the day, those sorts of general everyday decisions, and we thought about it in terms of the significance of the decision and also the length of time that you have to make it, so if the decision is not that significant, it is reasonable to take it under the general authority regardless of time. However, if you have a really significant decision such as where someone lives, how they are going to spend their days and indeed medical treatment, it is not reasonable, in our view, for those decisions to be taken under the general authority unless there is a pressing need for it to be done so and that need is in the person's best interests, and in those cases if a decision is taken under the general authority, then the need to log them and record them so that the decision can be challenged afterwards becomes even more paramount, so there is a second set of circumstances which you may want to question me about.

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