Examination of Witnesses (Questions 282-299)|
8 OCTOBER 2003
Q282 Chairman: Thank you all for
attending. I think you heard the announcement I made to the previous
witnesses, would you be kind enough to introduce yourselves briefly.
Professor Murphy: I am Professor
Glynis Murphy, Professor of Clinical Psychology and Learning Disability
at the Tizard Centre.
Dr Ehlert: I am Karen Ehlert,
I am from the British Psychological Society and I am the Honorary
Secretary of the Division of Clinical Psychology.
Dr Kinderman: I am Dr Peter Kinderman
Reader in Clinical Psychology at the University of Liverpool.
I Chair the British Psychological Society's Working Group on Mental
Health Law Reform.
Dr Dooley: I am Dr Catherine Dooley,
I am a Consultant Clinician Psychologist working with older people
in South London. I am also the Clinical Convener for the BPS Group
developing professional guidelines on the assessment of capacity
Dr Zigmond: I am Tony Zigmond,
a consultant psychiatrist in Leeds. All my patients are currently
detained under the Mental Health Act. I am the Mental Health Law
Reform lead for the Royal College of Psychiatrists.
Dr Herbert: I am Camilla Herbert,
I am Chair of the Division for Neuropsychology in the British
Psychological Society and I work in brain injury rehabilitation.
Q283 Chairman: If I can start, as
you know the draft Bill will put into the statute a number of
principles that are already in the common law but it also establishes
a new system relating to substitute decision making. In your view
does the draft Bill go far enough to improve the decision-making
process for professionals, families and carers and those who are
unable to make decisions for themselves? Does the draft Bill place
enough emphasis on the need to facilitate communication by people
Dr Kinderman: Broadly, yes. Like
everyone else we welcome the Bill. We think in its basic structure
it is very good. We obviously have some concerns, you have had
some written submissions about some of the concerns we have. With
respect to making and communicating decisions one of the things
that we generally believe is there exist quite a few codes of
practice, especially the British Medical Association's code of
practice drawn up with the Law Society. If the Bill were to make
reference to a code of practice which enshrined those principles
then broadly the Bill would meet many of the requirements that
Q284 Chairman: Are you saying that
the principles should be in the code of practice?
Dr Kinderman: You asked me in
the second question about the draft Bill placing emphasis on the
need to facilitate communication. In that respect, the guidelines
drawn up by the British Medical Association and the Law Society
are very good. If reference to them are made in the Bill then
yes the Bill has many of the attributes we would want in it.
Professor Murphy: We would also
like to see a statement of principle at the beginning of the Bill,
much like in the Scottish Act: "All decisions made on behalf
of an adult with impaired capacity should benefit the adult and
take account of the adult's wishes if these can be ascertained,
take account of the views of relevant others . . . restrict the
adult's freedom as little as possible . . . and encourage the
adult to use existing skills or develop new skills", and
that would include communication skills.
Q285 Chairman: You do not see any
conflict if the principles are on the face of the Bill and the
functional approach that is in the rest of the Bill?
Dr Ehlert: Not at all.
Q286 Chairman: You do not see any
Professor Murphy: I do not believe
those principles will conflict.
Dr Zigmond: One of the advantages
and disadvantages of putting things in statute is that it improves
clarity but of course it makes the boundaries much more certain.
There are certain areas where it seems to us that there may be
some difficulties, and if I can very briefly mention three: One
would be patients who wander, not particularly trying to get somewhere
but they wander. What happens if the nurse keeps directing them?
As you know at the moment there are many examples where doors
have two handles or some other system which in some ways does
restrict a person's movement. The way that it is expressed at
moment it is unclear as to how that would be dealt with. A second
would be bathing, somebody who just pushes everybody away all
of the time, what does one do about that basic care? Is that prevented
by this Bill with the wording it has now or is it not? A final
example relates to an area of difficulty which is where one is
treating people for a physical disorder but they suffer from incapacity.
Supposing one has a patient with mild heart failure or who needs
antibiotics and they are just pushing people away where would
the authority be or would it not be and can one then revert to
common law to give that treatment? It is those sort of areas where
there are some concerns.
Chairman: What I would like to do now,
as we did with the previous witnesses, is to bring up the questions
on research. I think you yourselves and the previous witnesses
are particularly expert in this area.
Q287 Jim Dowd: My powers of observation
would indicate most of you were sitting in the back rows when
I asked the questions earlier so I will not go through them in
the same detail. What provision should we have in this Bill regarding
the involvement of incapacitated adults in research?
Dr Zigmond: I think from the point
of view of psychiatrists we take a slightly different view from
that which I heard the British Medical Association express. We
put a lot of faith in ethics committees, we suspect they need
considerably more guidance, which we would want in a code of practice.
We have some difficulty with the overall notion that there should
never be substitute decision-making. Ethics committees may well
decide that a piece of research is very proper and yet I as an
individual may say that I want no part in it. I think there probably
ought to be a distinction between those types of research, and
clearly the research is essential, where there is the ability
for substitute decision-making compared to that where there is
not. If I can give you an example, if one is doing research over
a long period of time perhaps relating to a particular form of
learning disability then there should be no difficulty in terms
of time anyway in having somebody authorised who would be looking
at it from the point of view of the incapacitated individual,
even having got an okay, as it were, from a research ethics committee,
and I will come back to that. If one was doing research on investigating
different treatments within the first hour of admission for people
who suffered a head injury one could not then do that research
if it introduced substitute decision making because there would
be no mechanism for doing that. We thought about how to bring
these together, and I am grateful to one of my colleagues here,
one option would be, again it would be in the guidance for the
research committee, they would have to consider whether or not
as part of the protocol for the research there was a requirement
for substitute decision-making and the code would give guidance
as to how they would come to that decision.
Dr Kinderman: To follow up on
that, the answer to the first question is, yes, the Bill should
give consideration to the role of research and how people give
consent for research. Like Tony we do have some concerns about
the idea of having blanket decision making available for everybody.
The third point which Tony alluded to is one of the mechanisms.
We generally like the role of local research ethics committees
and we think they are quite strong and quite powerful bodies that
do legitimately constrain research. The way that the legislation
could possibly work would be to give guidance to ethics committees
on how they offer approval or guide development of the protocols
put before them rather than legislate for specific research and
take specific actions.
Q288 Chairman: Would they then need
to refer to the code?
Dr Kinderman: Yes.
Q289 Chairman: You would do that.
There would be some sort of provision in the Bill and some sort
Dr Kinderman: If the Bill were
to a refer to the need to follow proper procedures in obtaining
consent for research and were to refer to the idea that local
research ethics committees can give due consideration to the Incapacity
Act that would defer the responsibility to the ethics committee
not to the researcher. I cannot speak for Tony but I regard local
research ethics committees as well constituted, potent bodies.
Q290 Jim Dowd: You covered nearly
all of the ground in the series of questions which I had. Research
can benefit the individual although in a general sense it is looking
further down the track to help others, are you satisfied that
we can sufficiently safeguard the individual, let me use the case
of those with Alzheimer's, from being exploited in the pursuit
of research which is not connected with any research itself of
Dr Kinderman: My initial response
to that is I think local research ethics committees do a good
job of protecting research participants against exploitation.
At the moment the whole purpose of this Bill is to plug a gap
in legislature. I think the structures allow local research ethics
committees to address that issue, specifically with respect to
incapacity and give people the power they need. Most of my salaried
work is doing research on people who have questions of capacity
under the Mental Health Act and I think local research ethics
committees do a very good job balancing the risks and benefits
for those individuals because there are good laws behind them.
Q291 Baroness McIntosh of Hudnall:
Can I ask you the same question I asked your British Medical Association
colleagues which is about the state of research at the moment
and in what way. Including provisions for research within the
confines of this Bill will create opportunities or improvements
that you do not currently see available? What are the inhibitions
to research being carried out now? Dr Kinderman you said you are
engaged in research, you are already plugged into your local research
ethics committee, you have presumably already presented them with
opportunities to consider issues of the kind that would arise.
If research were included in the Bill, what is going to get better?
Dr Zigmond: I think many research
ethics committees quite properly are very perturbed about this
area. I think they are more reluctant to give approval than they
would do if there was a clear framework within which they could
operate. In fact one of the reasons why I came down to the decision
that in many circumstances a research ethics committee should
require a substitute decision-maker is again because of the confidence
that it would give them that this was being done where the balance
between what should be extremely minimal risks for the individual
who is not able to consent and the potential benefits either for
that patient or at least for those with similar conditions is
clear. It is really a feeling that this would enable research
ethics committee to be more willing to grant permission because
of the safeguards. At the moment people are just not sure whether
they can or not.
Professor Murphy: Perhaps I can
add to that, I know a number of research projects that have been
posed in London which were turned down because of the nervousness
of ethics committees, especially where it was a sensitive topic
such as sexuality. I myself had a great deal of difficultly getting
projects through ethics committee that related to providing treatment
for men with learning disabilities who committed sex offences.
It seemed to me blindingly obvious that somebody should have tried
some kind of framework. I think the ethics committee were opposed
partly because they were sex offenders and partly because they
were men with learning disabilities. They were a bit unclear about
exactly how procedures for consent should take place and whether
they were sufficient, and so on. I think this will make it all
Q292 Stephen Hesford: I want to focus
on Clause 27, if I may. Clause 27 in a way works forward and works
backward. It works forward in the sense of how does the Mental
Health Act relate to this Bill and it works backward in the sense
of how does this Bill relate to the mental health legislation.
It is that forward and backward relationship that I want to explore.
Is there an overlap? Should there be an overlap between this Bill
and either the Act or any new form of mental health legislation?
If there should be an overlap what should that overlap be? Does
Clause 27 adequately express the relationship?
Dr Zigmond: First of all there
is bound to be an overlap because within the definition of mental
disorder both in the code and the Mental Health Act and the proposed
Mental Health Bill almost any common conditions that lead to incapacity
Q293 Chairman: When you say the Mental
Health Bill, do you mean the draft Bill?
Dr Zigmond: The draft Bill to
come. The draft Mental Health Bill rather than this Bill. The
first thing is many patients could be subject to both. The second
thing is that as I understand Clause 27 (I think I did not understand
it to start with it let me add) I think it is only referring to
those people who are currently detained under the Mental Health
Act, it is not talking about those treatments which are covered
by the Mental Health Act or patients who are not detained under
the Mental Health Act. My reason for saying that is that first
of all it says in Clause 27 if the giving of the treatment to
a patient is regulated unless they are detained under the Mental
Health Act it is not regulated by part four. The second reason
for saying that is that part four of the Mental Health Act includes
not only those treatments which people commonly talk about with concern
such as ECT and medication but also includes nursing care,
habilitation and rehabilitation. If it is not referring to only
those detained then any nursing care, for anybody who requires
it for incapacity would have to come under the Mental Health Act,
that is clearly nonsense. The problem then is for many people,
professionals, there may be almost a choice as to which act to
use. Let me give you an example of some of the difficulties we
think that may present. In this Mental Incapacity Bill there is
regulation and authority given both for advance statements and
lasting power of attorney. If you ended up under the auspices
of this Bill then those would be honoured. If you ended up under
the auspices of the current Mental Health Act or the draft Mental
Health Bill they would not be honoured. That seems to us to put
professionals in a very difficult position and to be frankly a
nonsense in relation to patient care. I think the second bit that
is important in relation to this is the protections that are built
into the Mental Health Act which are not built into this. There
is a later question about Bournewood, I do not know whether
you wish me to go into that now.
Q294 Chairman: If you would.
Dr Zigmond: Bournewood
related to the admission of a patient to hospital but also to
his treatment. To separate the two is in fact very difficult,
admission includes treatment and related to specific treatments.
The Mental Health Act it seems to me gives three particular protections,
it protects people because they have a right of appeal, it protects
people because of a system for second opinions, statutory second
opinions where the doctor is not choosing which other doctor to
go to give a second opinion, and in some circumstances it is not
only a medical second opinion. Thirdly in terms of the inspectorate
in the form of the Mental Health Act Commission. This Incapacity
Bill certainly puts in if not a right of appeal then a system
for dispute, which I will call a right of appeal. It puts in some
inspectorates but there are questions about how far that goes.
It has no system for second opinions. Patients who for example
are in a nursing home and require treatment, medication for their
mental disorder would continue to get it. According to this Incapacity
Bill if patients continue to be compliant they could be given
the ECT without the use of the Mental Health Act or any of the
protections which Lord Stein said were missing. If one looks at
the draft Mental Health Bill, the new proposed Bill chapter five
in there addresses some of these issues only for patients in hospital,
not for patients either in nursing homes or in the community.
There continues to be very big omissions in our view.
Q295 Stephen Hesford: Dr Kinderman
wanted to say something.
Dr Kinderman: You mentioned forwards
and backwards in terms of the relationship between the two Bills.
There are specifics and generalities. Tony has talked about one
of the specifics, which are that weaknesses need to be tidied
up. There is also an issue that both the Royal College of Psychiatrists
and the British Psychological Society have about relationships
between the two Bills. Although they deal with overlapping areas
of mental health, and they both deal with proxy policy decision-making
there are many quasi medical decisions made on behalf of patients
who cannot make decisions for themselves, we both have concerns
about that. One of the things we like about this Bill is it essentially
validate people's decisions made when capable. It says that the
junction between allowing somebody to make a decision for themselves
and stepping into to making a decision for them is based on incapacity.
We are concerned that the basis of the Mental Health Bill it effectively
the same issues, so in the feed forward and the feedback between
the two bills there is a disparity in approach taken in the two
bills. On balance although the specifics of this Bill need to
be looked at the approach of validating the consensual wishes
of somebody who is incapable of making decisions is one that we
Q296 Stephen Hesford: As I recall
it the two bills in Scotland do a similar job, they both contain
the same set of principles so they are not necessarily parallel
but separate. Are you saying that something ought to be done either
to this Bill or outside this Committee something to the draft
Mental Health bill, and if so what is it, to make the relationship
more symbiotic from a practitioner's point of view?
Dr Kinderman: There are three
elements to that, the first answer is yes. The second answer is
in part it does relate to the Mental Health Bill but in part it
relates to the statements of principle, which are certainly ones
that we at the Psychological Society believe. We believe that
the law should rule that if people are able to make decisions
for themselves unimpaired by mental illness in the case of the
Mental Health Act or unimpaired by mental incapacity of the sort
of conditions we are talking about for the Mental Incapacity Act
they should be allowed to do that. One of the differences between
the Bills is that this Bill is welcome. If people really are unable
to make decisions for themselves somebody has to make the decision
for them and we will clarify the law on that point. One of the
difficulties of the Mental Health Bill and one that concerns us
and the Royal College of Psychiatrists is that it takes a different
approach to the question of whether the law can intervene in people's
Q297 Stephen Hesford: In terms of
Clause 27 what would you do, if anything, because I have not heard
anything, that would address any of the issues that we have been
Dr Zigmond: Let us try and be
specific in relation to the general authority. One of the questions
that you have asked is, what should be excluded? What should not
be covered by the general authority? That is for discussion. If
I can give you some examples, in order to build in the Bournewood
type protections one would warrant in relation to treatment for
mental disorder there were mirrored protections, there were similar
protections to those in the Mental Health Act. One would not want
to set up a completely separate system so again if I may just
paint a simple picture for you, if you have a patient who is requiring
medication for mental disorder, after an equivalent length of
time as under the Mental Health Act there should be a second opinion.
How could one do it? One could have a second opinion process under
the current Act or whatever comes under the new Act, you could
have that accessed by two acts rather than one and that would
keep duplication to a minimum, training to a minimum and bureaucracy
to a minimum. That is one thing, there are others. We think that
there are questions as to what invasive medical treatment should
come under the general authority. If there are considerations
there then one of the things one could do is have a second opinion,
have a range of medical professionals and adults. Again to give
an obvious example if it is thought that somebody needs a lot
of teeth removed is it right that it goes under the general authority
or should one at that point have a requirement that somebody else
skilled in that work would be brought in independently to confirm
the clinical advantages of this? It is building on this. That
would of itself mean that in terms of Bournewood it would
address those gaps. We think we would go further because it would
bring in other branches of medicine and stop some of the discrimination
between psychiatry and other branches of medicine.
Q298 Mrs Humble: I want to clarify
if could there be a harmonious situation that Stephen was talking
about between any mental health legislation and this legislation.
On that issue of compulsion that you referred to, which does seem
to be a very distinctive part of mental health legislation and
at variance to everything that is in this draft Bill. I just wonder
if there is any way that we can overcome that?
Dr Zigmond: One of the difficulties
is the notion of compulsion. It can certainly be argued that if
somebody truly lacks capacity are they refusing anything, are
you compelling them any more if they can no more refuse than they
can consent. As I say this is one of the difficulties. For example
in some very ordinary situations can you compel somebody not to
go into the road, you can because that would be immediately dangerous,
but it is less than that. This Bill presents those difficulties.
There are those of us who believe that a Mental Health Act, (believe
very strongly I have to say) should not be forcing anything, any
intervention on people who are able to make decisions for themselves.
That is a route that they have gone down in Scotland and we would
very much like to see the basis of that. We would go further and
say in an ideal worldI was advised not to say this but
as you have asked the question I willwe think there should
be two bills but not these two. We would have an Incapacity Bill
very much based on this but with the protection that I just hinted
at which would cover all people who lack capacity for whatever
reason and then it is true that that would not cover certain groups
of people who have committed offences but we would have a separate
Mental Disorder Offenders Bill, we would have two but not these
Q299 Mrs Humble: Would you also recognise
the fact that within this draft Bill it is recognised that sometimes
people who will be making decisions whilst they are capable for
a future time when they will lack capacity which you as clinicians
may not agree with, the family may not agree with, carers may
not agree with but those decisions will hold, whereas when you
are dealing with your patients who are confined under the Mental
Health Act you are making decisions on their behalf and they may
well be expressing opinions that they are totally opposed to what
you are doing to them. I have real difficulty trying to come up
with a situation where we can harmonise those two.
Dr Zigmond: I think it could be
harmonised. Leaving that to one side can I say that I would not
want this to detract from building in the protections that I talked
Dr Kinderman: Tony and I very
much see eye to eye on this. Is it possible to come up with a
situation where we look out at the world and see nothing but fluffy
bunny rabbits? No, there is always going to be difficulty out
there. A big question is, like Tony says, is the issue about two
Bills but not these two Bills. There are a number of options.
There are a couple of things that are important, there could be
better harmony between the two bills, both Tony and I are making
some percentage of our evidence today about the relationship with
the Mental Health Bill. The way this current Incapacity Bill is
structured has the safeguards that Tony mentions but the basic
principle, and this is one of the reasons why we would like the
principles to be on the face of the Bill, the principle that people
who are able to make decisions for themselves should have those
decisions respected is one that we welcome. Introducing that into
UK law would only go some way towards harmonising the issue. The
reason why I see people who are treated compulsorily under the
Mental Health Act and the reason why Tony treats people under
the Mental Health Act is because they are not able to make valid
decisions about their health care, their health care is perturbed
and disturbed by their mental disorder. It is not dissimilar to
the reasoning behind the Mental Incapacity Act because you are
not making valid and consensual decisions so decisions are perturbed
by the mental disorder. It is in the realm of the incapacity legislation
in general to say that a proxy decision has to be taken about
the validity of the health care. It is also the case that many
of the people detained under the Mental Health Act I have seen
for research purposes are perfectly able to refuse participation
in research and I have to by law accept that refusal, I cannot
say because they are mentally ill they have no rights under law.