Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 540-552)


14 OCTOBER 2003

  Q540  Huw Irranca-Davies: In respect of, first of all, protecting older adults from abuse but also detecting cases of abuse where they are happening, what are your thoughts in respect of a formal regular system of inspection of people who are vested either with lasting powers of attorney or, alternatively, with a general authority? Would a formal regular method of inspection be a valid one, an appropriate one? Is it overkill, in effect? Is it practical?

  Professor Williams: I think the general authority would be very much as I have just described, a light touch—it would need to be logged in. For the lasting authority, I think it is a pretty significant decision to say that "in the event of my being incapacitated I give you responsibility for my financial affairs". I think people may be reluctant to do that unless they know there are adequate safeguards in the system. I think that does presuppose that there is some kind of inspection process in place. Again, we come back to resources, we come back to bureaucratising the whole process, although I think someone who accepts lasting power of attorney, or enduring power under the existing law, accepts a greater responsibility and a recognition that it is going to be more time-consuming, you are going to need to go through the formalities. Under the lasting power of attorney I would like to see a greater level of accountability than maybe we see under the enduring powers of attorney.

  Q541  Huw Irranca-Davies: And you would want that laid out on the face of the Bill?

  Professor Williams: I would want the principle laid out on the face of the Bill, the detail elsewhere. I do not know whether it is a good example to say rather like one audits direct payments. I am not sure that is a good analogy. If I sign a document saying "You look after my financial affairs in the event of X", I think people are entitled to safeguards. An increasingly worrying group of people is people who appear to sign an enduring power of attorney and yet you know full well that at the time of signing they lacked capacity, their hand was guided over the bottom of the paper basically.

  Q542  Huw Irranca-Davies: On that basis, as the Bill is currently formed we have under section 12(2): "P may, at any time when he has capacity to do so, revoke the power." On the basis of what we are talking about, which is a formal regular system of inspecting individuals who are given that lasting power of attorney, should it not also work the other way recognising that the capacity of an individual who gives that power to a donor is function specific, is time specific, will fluctuate over various periods and various instances? Should there be something within the Bill that recognises we should go back to that individual on a periodic basis?

  Professor Williams: I think, again, that is extremely useful because incapacity is not necessarily once and for all. Particularly important is the point you make that incapacity is not a general thing but is function specific. Again, coming back to this human rights point, one does need to periodically review whether continuation of this power of attorney is appropriate or appropriate in its current form because maybe things have improved and maybe it has just become so comfortable that no-one is going to challenge it. I think that could quite usefully be part of the process, especially where the prognosis is that the person may actually improve, perhaps less so where you are convinced that the person's capacity will not improve, it will get worse, but where there is a possibility that with education, training or whatever, the person may improve then I think that would be helpful.

  Chairman: Thank you very much. Can we conclude now with advance decisions to refuse treatment.

  Q543  Lord Rix: In your written memorandum it was suggested that advance decisions should be time limited, needing to be updated, say every five years, while the person still had capacity. You then went on to say, alternatively, an incentive to update could give doctors more scope to deem advance decisions less applicable after a fixed period. In your view, how could a requirement be imposed on individuals to review advance decisions, whilst they are still capable, to ensure that the request remains current? How would you give power to the doctors, which might be an unpopular move with many, to make alternative arrangements to these advance decisions to refuse treatment?

  Professor Williams: Firstly, I very much welcome the inclusion of advance decisions in the Bill, I think that is a very positive step. I am concerned that, perhaps as envisaged in the Bill, the advance decision does not have a shelf life. I might make a decision today that in the event of X, do not do Y, because Y is horrendous and the possibility of full recovery is zero, so I say "If I am incapable, do not do Y, let me die". Five years down the line, Y may be a relatively simple unobtrusive form of treatment and I think one has to ethically say should that be allowed to stand because the person made it in one context, that context has now changed. The context was that it was intrusive, likely to be unsuccessful, and that has now changed. I think that people should be encouraged, and perhaps I would go even further and say required, to revisit their advance decision periodically. That is one way—to say that advance decisions have a shelf life of five years after which you come back and renew. The alternative is a suggestion I floated in my submission that perhaps the doctor's interpretation after five years, or a period of time, could be slightly more liberal and you would give the doctor greater scope to say that circumstances have changed and, therefore, the advance directive should not stand.

  Q544  Lord Rix: You would not think that this negates the whole purpose of an advance decision?

  Professor Williams: It might run the risk, but at the same time I think we need almost a kind of public education campaign as to what advance decision making is all about. It is looking in the year 2003 and saying "In the event of this, do not do that", and it is based on all that is happening in 2003, but in 2006 it may be desperately different. I somehow think that people should be expected to revisit advance decisions because otherwise you perhaps impose on the medical profession very difficult decisions.

  Q545  Mr Burstow: In 2006 only three years has gone by and you were talking about five years.

  Professor Williams: I am pulling figures out of the air. I mentioned five but it could change overnight, of course. To some extent we have just got to pick a figure and go with it that is reasonable in the sense of the rate of development of medicine. Five may be inappropriate, I do not know. I think the principle is that the expectation should be that we come back, revisit and think "Do we want this to continue", because otherwise it may involve the medical profession in quite complex ethical questions: "They said do not do Y, because then Y was terrible, but actually it is easy-peasy, we can do it".

  Q546  Mr Burstow: If Codes of Practice laid down the form that an advance decision to refuse treatment would take, which will be clearly liberal in its interpretation as far as the medical profession is concerned, and also the view of the fact that advance decisions are made absolutely voluntarily, nobody is going to force you to do this, would you not accept then that if they are carefully written, they are not demanding euthanasia or anything of that sort, and give the doctors sufficient scope to review the situation clinically over time, would you not consider that sufficient? The fact that they are made voluntarily, would you not consider that they should be able to continue to hold good and doctors should interpret them in the best way possible?

  Professor Williams: I think that presupposes that the advance decision will be clear and will be—

  Q547  Mr Burstow: I am saying it should be on the Codes of Practice so that people know exactly how it should be written.

  Professor Williams: It should be on the Codes of Practice, although in a sense I think one has to legislate for those that are not clear and, as I say, would provide the doctor with perhaps quite a serious ethical dilemma at the end of a particular period of time. I think in principle it is desirable that we go back and revisit these decisions that we make in advance because our views may have changed. It is rather like changing your will, you might have fallen out with the person you have left all your money to but you never get round to going to the solicitors to change your will because you have done it, that is it, it is in the bag and you do not want to think about death any more. I think that as responsible citizens we should be encouraged to go back and revisit, whether it be three, five, ten years, I do not know, that is a figure plucked from the air. I think it is an act of responsible citizenship, if you like.

  Q548  Stephen Hesford: Just on this point, would not the additional difficulty be that if you had a period of time when there was a statutory duty to revisit and you had a period of five years, on your scheme if there was a decision to be made and it was four years and 364 days a decision would be made under the advance directive but given full force because it is within the five years, but under the scheme Lord Rix was talking about, and doctors have been talking to us about, if the Codes of Practice were sufficiently well thought out there would be flexibility to come in and apply what should be applied at the time, whereas your scheme would actually prevent that flexibility taking place?

  Professor Williams: I take the point that any time limit is arbitrary, the age of consent at 16 is entirely arbitrary and a matter of seconds can change things dramatically, but I still come back to my basic point that we have a responsibility to revisit such advance decisions on a fairly regular basis because we are asking professionals to do or not to do things to us in the event of a context that may not exist at the time the decision has to be made.

  Q549  Stephen Hesford: You are asking somebody to revisit their advance directive by a certain date which means that they have got to go all through the process of having it witnessed again, rewritten again, or could they merely add a codicil, as it were?

  Professor Williams: You could have a short, fast-track revalidation system if you wanted, and I think that might make sense. As I say, it is important that we do go back and look again and say, "Is this really what we want" because when the time comes it is too late.

  Q550  Chairman: Just on a point of principle, as you know the draft Bill puts into statute the current and common law position but supposing those provisions were not in the Bill, what would the effect be, to stay with the common law as it is now?

  Professor Williams: We would stay with the common law.

  Q551  Chairman: Would that be worse than the position now?

  Professor Williams: This is such a sensitive area that I think, insofar as legislation can provide clarity, we need the clarity of legislation rather than common law. That takes us back to the first discussion we had, that common law is okay but increasingly this is becoming an important issue for people.

  Q552  Chairman: On the other point about the changing knowledge of medical treatment, if an advance directive said something like "Based on the treatments known to me at this time I wish to refuse treatment", it would then mean that if treatments changed the directive would not be based on those new treatments.

  Professor Williams: Yes, and you would tie it into day one, as it were, the day you signed it. That is possible, although who knows what the person knew on that particular day. That may be a practical problem, an evidential problem.

  Chairman: If I can thank you on behalf of the Committee for being so patient and waiting for a long time but we were interrupted by divisions which are outside our control. You have been extremely helpful. If there are any further points you would like to make we would be happy to receive them in writing. Thank you very much.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 November 2003