Examination of Witnesses (Questions 300-319)|
8 OCTOBER 2003
Q300 Mrs Browning: Can I bring you
back to the Bournewood case, some of the problems that
occurred there were that carers who did have capacity and who
were able to speak for that individual were rejected by the professionals
and had they had more input earlier we would not have needed what
was described as medication and then after a period of time a
second opinion. I can see the strength of having the opportunity
for an independent medical opinion so long as when you are dealing
with people with autistic spectrum disorders the person giving
them the second opinion actually has a specialism in the subject.
This is the real problem that we have, we are talking about conditions
like ASDs, which come under the remit of psychiatric services
and inpatient treatment but there is a paucity of psychiatrists
in this country who are actually able to deal with a combination
of either autistic behaviour, which is not a psychiatric condition
but is what a lot of us would regard as fairly normal autistic
behaviour however challenging and those people with an ASD who
do have an overlying psychiatric condition. How do you see this
draft Bill specifically helping cases such as the Bournewood
Dr Zigmond: I agree with everything
you say. The only thing I would add is there is a shortage of
psychiatrists in this country not just in that particular area.
Q301 Mrs Browning: Good plug.
Dr Zigmond: I agree entirely.
One of the things that we tried to do when I served on the relevant
bit of the Mental Health Act Commission which addressed issues
not only of those where there could be expertise in particular
areas and the importance of trying to match people with expertise
but also looking at race and gender because we also thought that
was important. They are important but whilst we have the shortages
that we have it is very difficult to ensure that the highest standards
we wish for are always met. I agree with everything you say.
Q302 Mrs Browning: Are the resources
and lack of trained psychiatrists going to have as much an impact
on this legislation as they are having under the general mental
health services and the Mental Health Act?
Dr Zigmond: Except that much of
this legislation of course is not relating to psychiatric care.
Q303 Mrs Browning: I realise that.
Dr Zigmond: But where it does,
yes, it will.
Q304 Baroness Knight of Collingtree:
I ask this question as much to get it on the record as to ask
your opinion of it. It is my understanding that many mental patients'
conditions, particularly those with psychiatric worries, vary
greatly according to whether they take their medication or whether
they do not take their medication. In other words, there are times
when they are perfectly logical if they have taken their medication
and times when they are not. Could we cover this point? Am I right
or wrong on this? How do you deal with it?
Dr Zigmond: You are right. I am
not quite sure what it is you are asking. As a statement you are
right, that many patients with many disorders are well if they
take their medication and poorly if they do not.
Q305 Baroness Knight of Collingtree:
But we are dealing with psychiatric patients and mental patients.
Dr Zigmond: They would be no different
from somebody with epilepsy or diabetes. It is really rather stigmatising
I think to pick out one particular group because it applies to
most people who have chronic conditions which require medication.
If they do not take the medication, they will be poorly. Some
of those will have their decision-making ability markedly damagedan
obvious example is diabetesif they do not take their medication.
One needs to be careful about singling out one group.
Q306 Baroness Knight of Collingtree:
This is the Mental Incapacity Bill and so that is why I am talking
about that particular group. I do not mean to stigmatise them.
Dr Kinderman: One of the issues
which follows from that is that occasionally you are presented
with somebody who makes a decision and you, as a clinician, have
to follow that through, and then they make a different decision
and you have to follow that through. There is a logical position
which I think has to be incorporated in the legislation which
one that deals with that fluctuation of capacity. You have to
have a plan of care as a clinician for an individual whose capacity
fluctuates and that is a subtly different way of conceptualising
their clinical problem. "Do I let this person walk down the
street today and do I let this person walk down the street tomorrow?"
You have to make a clinical decision as a clinician about what
to do in both circumstances, and the decision as a whole has to
cope with the fluctuation as a whole.
Q307 Baroness Knight of Collingtree:
Thank you, Dr Kinderman, that was what I wanted to bring out.
Does the Bill actually cover that variation that you have to deal
with in the general rules?
Dr Kinderman: Yes, broadly. One
of the issues it relates to is the issue of general authority.
If the Bill were worded in such a way that preventing somebody
from wandering were covered by general authority but their capacity
as to whether it is dangerous to walk the streets or not was to
fluctuate, what you would actually have to do is make a decision
about whether a wider clinical decision was necessary on how to
deal with their wandering and fluctuating capacity, and that would
be the issue at question. One of the things which hopefully we
will come on to in a minute is that such a decision might be covered
by general authority, or restrictions on that person's liberty
might be such that you would need to do something a little more
unusual and you would need more authority to deal with that.
Q308 Lord Rix: If you take it further
and look at people who have a permanent limited mental capacity,
not a fluctuating one, would you think it possible, and how would
you make it possible, for them to make advance decisions, say,
to refuse treatment? Do you think this could be written into the
Dr Kinderman: Yes, absolutely
it can be written into the Bill, and I think the Bill as it stands
Q309 Lord Rix: You think it is adequate?
Dr Kinderman: I think it needs
to be followed up with a robust code of practice but the general
principle, does this individual at this time in consultation with
this responsible clinician understand the issues and the way they
have been laid out, whether or not they have made a decision,
the Bill allows for that and that is good.
Lord Rix: Good.
Q310 Mr Burstow: General authority,
which we have been talking about for some while. I have a couple
of questions but, just to make sure I understand the discussions
so far around the two different Bills, can I ask this? You have
described the two parallel systems of proxy decision making effectively,
who decides which set of proxy decision making actually applies?
Dr Kinderman: There is not a Mental
Incapacity Act at the moment.
Q311 Mr Burstow: Assume there is,
who would then decide?
Dr Zigmond: I think that is one
of the difficulties which we will be faced with. There are certain
areas where it would be clear, an obvious one being that both
the current Mental Health Act and the proposed one do not require
any lack of capacity. So if people have capacity and for some
reason you have to go down the road of compulsion, then it will
be the Mental Health Act.
Q312 Mr Burstow: But it is unclear?
Dr Zigmond: For an incapacitated
patient it would be very difficult. At the moment of course with
the current Bill they need to be in hospital, and that may make
a difference, whereas if we had a Mental Health Act which does
not require admission to hospital, does not require in-patient
status, it would become even more difficult. But, as I say, one
of our fears is that it could lead to some of the provisions in
this Bill being overridden.
Q313 Mr Burstow: I wanted to get
that out because it is something we have to deal with. Can I ask
on the question of general authority, the evidence from the British
Psychological Society in a way puts forward the argument there
is a need for a further element, another category, of proxy decision
making, the idea that where you get to a certain intensity of
activity or treatment or whatever that would then require registration
with the public guardian. But that still leaves a whole host of
issues which might fall within the general authority. Do you feel
the general authority is a defendable idea which should stay in
the Bill and how can we draw the boundaries on it once we exclude
a whole range of things which should be referred down the registration
Dr Herbert: I think we have a
general consensus that there is a huge amount of decision making
which could usefully come under general authority which at present
is happening anyway but has no clear framework. So many day to
day care decisions are happening without a clear legal status
and general authority would allow a vast chunk of those decisions
to be made, whether in the best interests or that restriction
would happen, but there is a threshold beyond which the seriousness
of the decision and the nature of the decision would step in and
say, "We just cannot work on best interests, we have to stand
back and look at this." What we are saying is that that is
not a one-off decision which is suitable for all cases, but sometimes
it becomes a very straightforward, "Okay, we need to log
the fact it has moved to a different level" and you do not
need to do much more in terms of assessment because it is clear
what the issues are. However, there are some small number of complex
cases where you need a more detailed assessment and those are
the things which are not specified in the Bill and probably should
be in the code of practice but you need something which takes
you through those levels in a systematic way.
Q314 Mr Burstow: What would be the
test you would be applying which would enable you to make that
judgment which should be in those codes of practice to ensure
everyone adopts a similar approach?
Dr Dooley: I think there are a
number of factors within that. I do not think we can specify the
facts but a code of practice will be quite important to operationalise
those. You have the severity of the decision; you have the person
requesting the withdrawal of life-maintaining health care and
matters like that. You also have the complexity of the situation,
and I practice with older people where you may have disputes with
carers, where a family member wants one thing and another member
another and so on, so there is an area of complexity there. There
are certain decisions which by necessity are high profile, and
you have mentioned the one in the papers recently where in a sense
to protect the people involved you need a formal decision making
process and a monitoring of that.
Dr Zigmond: There are some areas
where one would go towards registration but for many one would
still want to have some system of notification. One of the difficulties
it seems to us is that if there is no notification to a central
body, how can anybody know these people exist and are being subject
to something, so therefore any inspectorate just goes by the wayside.
So we need notification. Secondly, when we met with the BPS and
discussed this we decided there were some things which would need
very clear thought when going into the codes of practice and it
became clear through the discussion that one sees things from
different sides depending on what one is used to practising. For
example, one of the things on the BPS list at the top is severe
life-saving treatment. That may be okay if it can be done in the
cold light of day but if somebody comes unconscious into casualty,
you would not want to have to go through a system of registration
before the doctors could intervene.
Dr Ehlert: The other issue is
that at the moment it is either/or, it is general authority or
going to the courts. I think going to the courts can be very daunting
for some people and apart from that it is also very costly, I
would imagine. Earlier in the discussion there was reference to
a continuum of factors and I think therefore there needs to be
some sort of plan.
Q315 Mr Burstow: That is helpful.
I does seem to me, Chairman, that is what this is suggesting,
there is always another tier of proxy decision making being suggested.
Can I come on to another question regarding general authority
again? Several witnesses have talked about the issue of the use
of restraint in certain circumstances, or have alluded to
restraint being used or suggested there might be circumstances
in which restraint might be appropriate for a person who lacks
capacity. Is there not a certain situation where the use of the
general authority could become a defence in the courts for what
many would regard as an inappropriate use of restraint?
Dr Zigmond: Yes.
Q316 Mr Burstow: My final question
is on the question of abuse more generally. Does there need to
be a specific duty, and, if so, is it on the local authority or
some other agency, to investigate allegations of abuse and also
to be in a position, picking up on a point already made, to be
aware there are people who are potentially being covered by this
Dr Zigmond: We think the important
issue is expertise and availability. In Scotland it comes under
the Mental Welfare Commission. Whether it should be a separate
body or whether it should come under an expanded Mental Health
Act, whether it should come under an expanded CHI system, whether
it should be the local authority, we certainly didn't feel we
should comment on it. The important bit is the expertise and availability.
Q317 Mr Burstow: Are you aware that
local authorities already have a responsibility under "No
Secrets Guidance" to develop adult protection?
Dr Zigmond: Yes.
Q318 Mr Burstow: Would not a statutory
duty help reinforce that framework?
Dr Herbert: We have discussed
that, and local authorities do already investigate individual
cases. We feel that is not sufficiently robust as it stands at
present and what you have is a case-by-case case law build-up
in local areas. What we are arguing for is that there should be
more national recognition of these issues so you do not have to
start each time discussing issues of capacity. At present they
operate in a vacuum. The other point on your question of general
authority, what happens if there is a question of abuse, and what
we are arguing for is as soon as there is a question mark about
general authority and you are raising that challenge, that is
when you start to say there should be an assessing of performance
of some kind, which then opens up the opportunity for anybody
who has a conflict with it which has not been solved by normal
clinical case discussions, to have a way of taking it forward
which is not immediately going to court but assessing it in a
more balanced way and trying to take it forward in that way.
Dr Kinderman: You mentioned restraint,
but wandering is a better example. At the moment because there
is not a system of formal registration of these sorts of decisions
with somebody like a public guardian, we do not know how many
clinicians regard it as part of the normal clinical practice to
restrict people's activity and their wandering behaviour. One
of the benefits of a formal system of registering that is you
know that and you may well find that people are waiting until
it is an impacting decision on somebody's life before they actually
decide they need to invoke the law. By having a system of registering
these decisions, you would be monitoring it over the years and
could find out how to respond.
Chairman: Before we move on to advance
decisions, I want to be clear about the assessment of capacity.
Q319 Mrs Humble: Can I ask you the
same question I asked our earlier witnesses which is vital because
it underpins the whole Bill, which is that process of assessment
of capacity. Who should do it? How should it be done? Especially
with regard to those people who do not consent to being assessed.
Do you think it should be on the face of the Bill or should it
be in regulations?
Dr Kinderman: We think on balance
it should probably be in the regulations. One of the reasons for
that is that it is actually very complex. It is the duty of every
doctor and probably every psychologist to have some awareness
as they are treating a person of that patient's capacity to understand
the decisions. That is just a general duty. It is also the case
that the vast bulk of the decisions we are talking about which
are covered by the Incapacity Act generally will be done under
some general authority, it is a standard part of care. The decision
as to whether you have to make a formal assessment of the person's
capacity, decide they have capacity and decide to act under general
authority, decide to make a formal assessment of capacity as part
of your normal clinical practice, register the patient as an incapacitated
patient and move on and treat them, whether you call in another
professional or a more senior colleague, there is a gradation
to these things and it should be part of the normal clinical practice
of professionals to do that regularly. So the guidance is you
should always have a view of capacity, you should assess it within
your own competence and call in specialist help to assess the
more difficult areas when the decisions are more severe.