Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence


8.Memorandum from the Royal College of Psychiatrists (MIB 824)

    —  The Royal College of Psychiatrists is the leading medical authority on mental health in the United Kingdom and the Republic of Ireland and is the professional and educational organisation for doctors specialising in psychiatry,

    —  The principles which underpin the Mental Health Bill should be similar to those which underpin the Mental Incapacity Bill. A person's decision-making ability is key to both Bills.

    —  We welcome the respect for self-determination which guides this legislation and that "capacity" is decision-specific and should be assessed on the basis of a person's ability to make a specific decision at a particular point in time.

    —  The concept of the "General Authority" is to bring into statute common law. However further guidance is necessary as to its scope. Whilst Clause 26 gives some exclusions it does not state the limitations with respect to health care eg sterilization or termination of pregnancy?

    —  Advance decisions to refuse treatment may cause individuals unintended distress, harm and prolonged suffering. There should be a duty on professionals to try and ensure that an advance decision is not leading to unintended harm.

    —  Patients should be given the right, which must be taken into account, to express positive wishes about how they wish to be treated. Such wishes cannot be binding upon the health professional. Attorneys or Court appointed Deputies should not have the authority to require a health professional to provide any particular specified treatment, as opposed to the power to refuse consent. The donee should be legally responsible for acting properly in the best interests of the patient.

    —  "Fundamental healthcare" should not require specific authority. Nor should general medical examination and continuation of long-term treatments to which the patient consented whilst still capable.

    —  The relationship between the Mental Health Act 1983 and the Mental Incapacity Act will need further clarification. The meaning of Clause 27 lacks clarity. It would be inordinately restrictive and inappropriate if it meant that all incapable people requiring medical drug treatment for mental disorder would need to be detained under the MHA regardless of the circumstances. The majority of treatments for mental disorder should, if "reasonable" and "necessary" be possible under the "General Authority" of the Bill.

    —  Many people need medication for physical ill health problems. Sometimes cognitive impairment leads to them resisting medication for their physical ill health. A legal mechanism is essential to enable such necessary medication to be given compulsorily when it is "refused" in these circumstances.

    —  Clause 27 might be replaced with a Clause on treatments requiring specific regulation. A list of interventions not covered by the "general authority" might be broader than that which could not be authorised by a donee. A person who has specifically given authority for another person to make health care decisions for them would surely expect the donee's consent to carry almost as much weight as their own.

    —  The means by which specified medical treatments will be authorised will depend on the nature of the intervention. Eg sterilization requiring the authority of the Court. Specified treatments for mental disorder could be dealt with by requiring use of the current, or future Mental Health Act. The College's preferred option would be that the "second opinion" process could mirror that used in the MHA (current and future) using the same system and personnel.

    —  Consideration could be given to expanding the "second opinion" system to include physicians, surgeons and other medical specialists to enable statutory "second opinions" to be required and authorised for a range of difficult or controversial treatments.

    —  The Bill omits the issue of research involving people who lack the capacity to consent. This is an ethically difficult area.

    —  Registration of a Lasting Power of Attorney for loss of capacity by the donor in only one area may lead to the Attorney being given wide powers over many areas.

    —  The present formulation of "best interest" would permit families to insist that their older relative must "go into a Home" in their "best interests" when the older person does not wish it and their difficulties managing at home can be readily overcome by sufficient support.

    —  Clear guidance should given as to when the Incapacity Act or Mental Health Act should be used. People should not readily be subject to both Acts.

    —  Guidance is required, perhaps in the Code of Practice, in relation to the practice of giving "covert" medication.

    —  The Mental Health Act Commission or its successor body might be given a monitoring role.

1.  INTRODUCTION

  1.1  The Royal College of Psychiatrists is the leading medical authority on mental health in the United Kingdom and the Republic of Ireland and is the professional and educational organisation for doctors specialising in psychiatry, This report has been prepared in consultation with the Mental Health Law and the Parliamentary Liaison Sub-Committees of the Royal College, with particular reference to the Faculties of Learning Disabilities and Old Age Psychiatry.

  1.2  There has been an extensive period of consultation from the time of the original Law Commission reports to the publication by the then Lord Chancellor's Department of "Who Decides?" and "Making Decisions". We welcome this opportunity for pre-legislative scrutiny but question the need for such a rapid response given the fact that no Parliamentary time has been allocated for this Bill at present.

  1.3  We recognise that a serious gap exists in law in England and Wales with respect to those adults who through the presence of a mental disability may lack the capacity to make decisions for themselves. Whilst case law has increasingly filled this gap and has provided practice guidance, this is unsatisfactory. The absence of statute law has meant that there is neither a ready appeal mechanism, where there are disagreements (as indicated by L v Bournewood NHS Trust), nor a defined basis for developing good practice, such as would be the case with a Code of Practice accompanying a Bill such as this. We commend the Government for this proposal, which will put right this "gap" in law, as stated by the Law Lords in the above case.

2.  GENERAL COMMENTS

  2.1  Before commenting in more detail about the proposals set out in the Bill we wish to make some more general points that we believe are important when considering the Bill as a whole and in the broader context of other present or impending legislation.

  2.2  This Bill is in essence concerned with substitute decision-making under those circumstances where an individual's decision-making ability (capacity) may be affected by "an impairment of or disturbance in the functioning of the brain or mind". This concept of making a decision on behalf of another person is important in two other contexts. Firstly, the present Mental Health Act and the proposed Mental Health Bill deal with a very similar issue, although primarily limited to decisions about admission and treatment for psychiatric disorder. The College has argued that the principles which underpin the Mental Health Bill should be similar to those which underpin the Mental Incapacity Bill. Thus, a person's decision-making ability is key to both Bills. We very strongly urge that the Mental Incapacity Bill should be considered by Parliament first and that there should be very close liaison between the relevant Government Departments with respect to both of these two Bills. Secondly, the proposed new Sexual Offences Bill also includes the concept of a person's "decision-making capacity" and therefore there should be agreement as to definitions etc. between these two proposals.

  2.3  The central principle enshrined in this legislation is that of respect for a person's autonomy, and right to make decisions for him/herself, whilst recognising also that for some people the presence of a mental disability may render them less able or unable to make such decisions for themselves. There has, therefore, to be a solution in law that enables a resolution to such dilemmas and an alternative approach to decision-making under such circumstances. We welcome the fact that respect for self-determination guides this legislation. We also support the view, now well established in case law, that "capacity" is decision-specific and should be assessed on the basis of a person's ability to make a specific decision at a particular point in time. This "functional approach" is much to be preferred—it is no longer acceptable to argue that people lack capacity simply because they have a particular mental disorder (eg, dementia, learning disabilities, schizophrenia). However, in law, ultimately, the concept of a person's decision-making capacity requires that it is either present or absent. In practice such a functional approach may well not be so clear cut. For this reason we argue that both with respect to the determination of a person's capacity and when considering what is in a person's "best interests", if he/she lacks capacity, the legislation should be "enabling" rather than "restricting". In this regard we welcome the emphasis on using other means (eg pictures, sign language etc) to maximise the possibility of enabling a person to show capacity and the fact that, even if a person may lack capacity to make a particular decision, it is crucially important to take heed of what views he/she is able to express, any past wishes of the person concerned, and the views of others who know the person well.

  2.4  We note that the Bill as it stands does not include any mention of a person having a "mental disability" or "mental disorder", rather that there must be evidence of "an impairment of or disturbance in the functioning of the brain or mind". The College is, in principle, supportive of this change as it moves from a categorical approach (ie using the label of a mental disorder) to a functional approach addressing the individual's cognitive/emotional state but would emphasise two points. Firstly, clearly what is in effect a loosening of the definition from earlier proposals should not lead to the challenging of capacity of those without any obvious impairment or disturbance. Secondly, there are many very different ways in which a person's mind or brain might be affected such as to impair his/her decision-making capacity. Some problems, such as dementia, primarily affect cognitive ability and memory and are progressive. Others, such as schizophrenia and manic/depressive disorder, may be intermittent and affect reasoning ability. Yet others, such as drug abuse and alcohol intoxication, may result in a temporary confusional state, or, if associated with dependence, result in thinking that may be dominated by the demands associated with cravings and withdrawal. Impairments such as learning disabilities may be lifelong but abilities will be affected by educational and other opportunities. Thus, we would argue that any assessment requires a two-stage procedure. If a person's capacity is in doubt it is necessary to establish whether he/she does or does not have an impairment or disturbance of mind or brain and also to establish whether this has functionally affected his/her decision-making capacity for that particular decision. What then follows will depend very much on the individual situation and on the seriousness, and the urgency, of the decision to be made. The potential range of situations in which such legislation would be relevant has implications for the concept of "the general authority", and for the Code of Practice (see below).

3.  SPECIFIC COMMENTS

  3.1  We appreciate that the concept of the "General Authority" is to bring into statute what is at present common law practice. However, some further guidance is necessary as to the limits of this Authority. Whilst Clause 26 gives some exclusions it does not state the limitations with respect to health care. What about such contentious issues as sterilization of an incapacitated person or termination of pregnancy?

  3.2  There is nothing in the Bill to guide with respect to research involving people who lack the capacity to consent. At present this is an ethically difficult area. There is clear guidance from, for instance, the Medical Research Council and the Helsinki Convention but common law does not strictly provide such authority, as it cannot be argued that research is necessarily in that incapacitated person's best interests. However, if legal mechanisms prevented or deterred research with such people, then the development of treatments and the undertaking of treatment trials for disorders such as Alzheimer's disease would be very problematic. Section 51 of the Scottish Incapacity Act provides a framework for research which the College would support.

  3.3  Advance decisions to refuse treatment may sometimes lock individuals into courses of action which may lead to distress, harm and prolonged suffering which they had not intended. Refusal of active treatment in severe dementia, for instance, might be interpreted as debarring treatment for a urinary tract infection, or the good management of co-incidental stroke, with the result that the patient does not die but suffers considerably and unnecessarily. This makes safeguards to test the validity of advance decisions to refuse treatment important. The emphasis in legislation should be to put a duty on doctors and other professionals to ensure that such an advance decision is not leading to unintended harm and, if this was occurring, a mechanism to clarify or set aside the decision should be available.

  3.4  It is appropriate that patients be given the right to express positive wishes about how they would want to be treated in advance as well as the right to refuse treatments in advance. Such wishes must be taken into account when determining "best interest". They cannot, however, be binding upon the health professional (otherwise a doctor might be required to give treatment to a patient which he knows to be harmful).

  3.5  It is crucial that the donee of continuing powers of attorney be made responsible for acting properly in the best interests of the patient, and that there be clear safeguards and processes for when this may not occur. There has been concern about donees under the existing EPOA procedure (as well as advocates perhaps) failing to act truly in the best interests of patients. There is a need for strong safeguards in the Bill against donees failing to carry out their responsibilities properly. An addition under Clause 12 (5) could be made to address this:

    12 (5) (e) evidence that the donee is not acting in the best interest of the incapacitated person or is failing to carry out the proper responsibilities of the donee.

  3.6  The general principles of benefit, minimum restriction of freedom, past and present views of the adult, the views of others, encouragement to use existing skills and to develop new skills (which have all been employed in the Scottish Incapacity Act) are all very important and should receive prominent attention. This formulation could be less paternalistic than the present proposed "best interests" statement.

  3.7  There could be an issue, in judging capacity, about retaining "the memory of decisions". The best view may be that memory of the necessary information needs to be retained long enough to make a decision, and that there be consistency of decision-making, such that the person makes the same decision each time, given the same information, and/or agrees with the decision when reminded of it.

  3.8  Concerns have been expressed that medical treatment under the Incapacity Act has proved a problem in Scotland. This is largely because of the burden of administration and bureaucracy on the professionals. Nonetheless, the Bill must give sufficient protection. Consideration will need to be given to what treatments are regulated and which can only be administered with a statutory second opinion. A narrow definition of medical treatment, with a need to certify incapacity and a record of consultation for "written consent" treatments, may be appropriate.

  3.9  Many areas of medical treatment will be dealt with under the General Authority, or through appointed proxy decision-makers, with the opportunity to seek resolution from the Court in contentious cases.

  3.10  It seems appropriate that basic care, or "fundamental healthcare", should not be subject to the need for any formal procedure under the Act (as argued by Lyons, D.). This should include basic nutrition, hydration, skin care, oral care, elimination, eyesight and hearing integrity, communication, mobility and simple measures to relieve pain or discomfort. It could be argued that it should also include general medical examination and continuation of long-term treatments to which the patient consented whilst still capable, such as for diabetes, heart disease, etc.

  3.11  Beyond this, there should be a Medical Treatment Plan for people with significant incapacity which is subject to annual review.

  3.12  This could be linked to the expectation that for a reasonable period of time, (perhaps three months) whilst a test of best interests would be required, there would be no need for any formal mechanism for the approval of apparently necessary treatment.

  3.13  The relationship between the Mental Health Act 1983 and the Mental Incapacity Act will need further clarification. Clause 27 asserts the supremacy of the MHA. It is unclear if clause 27 refers only to people who are already detained under the MHA or if it includes all people who require treatments regulated under Part lV of that Act. That is, the draft Bill is unclear about treatment for mental disorder in incapable people not resisting treatment and not seeming to need detention. It could be taken to imply that psychiatrists (and social workers and general practitioners, in collaboration with family and carers) should formally detain all incapable people requiring medical drug treatment for mental disorder, regardless of the circumstances. Most incapable people would be at home or in nursing/residential homes. Such a practice would seem inordinately restrictive, inappropriate and excessively bureaucratic. The majority of treatments for mental disorder should, if "reasonable" and "necessary" be possible under the "General Authority" of the Bill. They would require safeguards but not necessarily detention under the MHA or the involvement of psychiatrists.

  3.14  Where an incapable person actively resists or opposes necessary treatment for mental disorder, there should be absolute clarity as to what legal procedure may be used to cover the situation and which law (eg this Bill or a Mental Health Act) has precedence. At present this appears to be the MHA. Arguably, a briefly and swiftly acting order, or mechanism, may be necessary for a single and perhaps urgent health intervention. This might mean the appointment of a Deputy by the Court but, again, there should be both capacity for the procedure to be delivered in a very timely fashion and clarity as to what powers could be bestowed.

  3.15  Many older people need medication for physical ill health problems. Sometimes cognitive impairment causes them to resist medication for their physical ill health. A legal mechanism is essential to enable such necessary medication to be given compulsorily when it is "refused" in these circumstances.

  3.16  Given the foregoing reservations about interactions with the Mental Health Act, in Clause 27, it may be more appropriate to omit it and replace it with a Clause on regulated treatments, perhaps using the recommended list of treatments under the Adults with Incapacity (Scotland) Act 2000. Consideration may be given to having two lists of regulated treatments. The list of interventions not covered by the "general authority" would be broader than that which could not be authorised by a donee. A person who has specifically given authority for another person to make health care decisions for them would surely expect the donee's consent to carry almost as much weight as their own.

  3.17  The means by which specified medical treatments will be authorised will depend on the nature of the intervention. Sterilization will presumably require the authority of the Court. Specified treatments for mental disorder could be dealt with by requiring use of the current or future Mental Health Act. This would be cumbersome and expensive. It would also lead to the person being subject to compulsion in a number of areas in addition to having authorised medical treatment. Alternatively a totally separate "second opinion" system could be devised. This is likely to lead to considerable duplication of administration and confusion for professionals. The College's preferred option would be that the "second opinion" process could mirror that used in the Mental Health Act (current and future) using the same system and personnel. The certificate issued (forms 38 and 39 in the Mental Health Act 1983) would state that the person was subject either to the Mental Health Act or the Mental Incapacity Act (one to be deleted). It is presumed that this would require a clause in the Incapacity Act amending the relevant section(s) of the Mental Health Act.

  3.18  Consideration could be given to expanding the "second opinion" system to include physicians, surgeons and other medical specialists to enable statutory "second opinions" to be required and authorised for a range of difficult or controversial treatments.

  3.19  Concern arises regarding registration of Lasting Powers of Attorney (LPA). Whilst the Bill makes great play of differential levels of capacity, people who have lost capacity in one area of decision making may still be unimpaired in other areas. However, registration of an LPA appears to be an "all or nothing" event, potentially with loss of capacity by the donor in only one area leading to the LPA being registered and giving the Attorney wide powers over finance, health and welfare. It is noted that health care decisions cannot be made by the donee whilst the donor retains capacity. Nonetheless this area may require greater clarity, perhaps through the Code of Practice.

  3.20  Clinicians meet families who are very strident in their views that their older relatives must "go into a Home" in their "best interests" when actually these older people may have dementia of only moderate intensity, such that their difficulties managing at home can be readily overcome by sufficient support. The older persons may be adamantly in favour of retaining their independence. There must be concern that the present best interests formulation risks the danger of over-paternalism in such cases through an undue influence of relatives' views.

  3.21  Mental Illness may lead to loss of capacity in many different ways. Examples include problems with memory (eg dementia) or delusions (eg schizophrenia). It is essential that clear guidance is given as to when the Incapacity Act or Mental Health Act should be used. Ideally people should not readily be subject to both Acts. Nor should the decision to use one or other Act be determined by the age of the person rather than their needs.

  3.22  Clause 10 (2) seems to allow an LPA to force someone to receive care or be resident somewhere. How will this happen? Will an appropriate authority to act be required?

  3.23  Arguably capacity should always be assessed by a doctor, not least with an LPA. It would seem appropriate that in most people for whom it was felt necessary to register and LPA, or for whom a declaration by the court was needed (clause 15), medical evidence would also be required. It would also seem likely that there would be an increased need for Lord Chancellor's visitors.

  3.24  Imposition of care in the face of resistance is an important area. This would need guidelines jointly with ambulance services and others to make it workable, best outlined in a Code of Practice. The principle that care may sometimes need to be imposed in the face of resistance is important and the Bill should state this. Another area where guidance is required, perhaps in the Code of Practice, is in relation to the practice, prevalent in many nursing homes, of giving medication "covertly". That is, disguised in food or drink.

  3.25  There is a need for quick and simple processes. Too much paper work risks preventing incapable people from receiving the necessary care when they, their carers and professionals are excessively distracted and occupied (or even deterred) by burdensome form-filling. Apparently there has been a perception in the Scottish experience of such a danger, with simple things such as dental checks and flu jabs requiring excessive documentation. Such issues may need to be picked up in more detail with the elaboration of a Code of Practice but it seems important to highlight them now.

  3.26  The duty to encourage participation of the incapable person, under Clause 4 (2b), is a most welcome thrust towards promoting autonomy despite diminishing capacity.

  3.27  Within the General Authority, Clause 6 seems potentially to allow significant leeway for a person to use the incapable individual's funds, perhaps abusively, and concern is raised that this may be insufficiently "policed". The simpler procedure used under the Adults with Incapacity (Scotland) Act 2000 may be both easier to operate and easier to "police".

  3.28  With regard to the welfare powers of Lasting Powers of Attorney, these could include consent to treatment but it would be important that the Bill should lay down absolute clarity about the role and power of Attorneys in this area and whether additional certificates or other forms of permission might be needed.

  3.29  With regard to Court appointed Deputies, there is a need for clarity as to whether such appointments would have to be made in every case for any decision or whether they may only need to be invoked when the incapable person resists the proposals or when in other ways there seemed to be controversy. Apparently in Scotland this area has been interpreted in different ways in different parts of the country, with some areas taking the line that all decisions require such a Court appointment. This approach would seem highly cumbersome, likely to delay timely intervention in the best interests of the individual concerned, and extremely costly of Court resources.

  3.30  There should be clarity that any Attorney or Court appointed Deputy cannot have the authority to require a health professional to provide any particular specified treatment, as opposed to the power to refuse consent.

  3.31  With regard to the exercise of Powers by Attorney or Deputies, it is not clear how concerns about the use of such powers might be relayed to the Court. Indeed, relaying concerns to a Court may be a mechanism that is too cumbersome for use when there appears to be some urgency. Perhaps the complaint or area of concern should in the first instance be looked into by either the local authority Social Services Department or the Public Trust Office (or equivalent) to establish swiftly whether there are grounds to merit further procedures.

  3.32  A framework under public law to protect incapable people from neglect or abuse, in their own homes or in institutions, seems very necessary. It is hoped that Clause 31 will provide the basis for this. The College would welcome the Mental Health Act Commission or its successor body being given a monitoring role similar to that of the Mental Welfare Commission in Scotland.

August 2003


 
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