Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 720-739)


22 OCTOBER 2003

  Q720  Huw Irranca-Davies: Colleagues later will want to go into issues of general authority, so I will not touch directly on that, but you said in your opening statement that those who are particularly vulnerable have their rights protected and that is the essence of this Bill, but are you confident, in light of what we have heard from some of our witnesses, that the balance is correct in terms of their individual interests as opposed to the interests of the wider community, which may have a different view of what would be the best approach?

  Lord Filkin: If I have understood you correctly, many of those concerns hinged around the general authority. It is either that we have failed to communicate clearly—in other words there has been misunderstanding—or there is an area of real concern, and I am not going to jump in and say it is neither of those at this stage. In essence, the short answer is no, I think we want to give some very serious thought to some of those anxieties, because obviously we are most concerned that the Bill is felt to be of benefit as well as being actually a benefit. So we have to look at those issues. In other words, our minds are not closed; we are not thinking we have got it perfect. I would not want that by thinking there was necessarily an easy escape route; in other words, just knocking off the general authority is not necessarily a wonderful answer, because what the general authority does is try to put in place a legal authority, albeit circumscribed by certain tests, which does not mean that people have to constantly feel that they are in a legal fog or that they have to constantly go back to court. There is some evidence from Scotland that because there is not a general authority, for example, in the Scottish Act, people are probably going to lawyers, going to court, more than is desirable or necessary. Whether there is a way between that Scylla and Charybdis I am not certain but that is, I think, the tension we want to address.

  Q721  Huw Irranca-Davies: You have also alluded in your opening statement to the fact that your thinking is, as you have just reflected, open to change and modification based on what we have heard. Are there any other areas, in terms of the protection of the human rights of an individual, where you think some development might be seen in your thinking?

  Lord Filkin: I cannot think of anything specifically in terms of the legislation. As ever, how you implement the legislation is an even bigger challenge than getting the legislation right. We are going to have a lot of thinking, as we are actively doing, across government, and particularly the Department of Health, about how it is implemented, because you can get a situation where the law is fine but the practice is not.

  Q722  Baroness Fookes: You will be aware that we had as early witnesses representatives of Scotland, who clearly thought that their brand of legislation was superior to this Draft Bill. Could I ask you first if there are any other lessons than the one you referred to about the general authority that we could learn from the Scottish experience?

  Lord Filkin: We have been enormously helped by having their Bill a law and implemented, and we have sought to have a very close learning relationship with our Scottish colleagues, without necessarily taking the view that all we need to do is to copy their Act. I do not think that is the case. I will probably touch on one or two. There is the real importance of getting codes of practice right, and we touched on that earlier, and their experience reinforces that. I have already touched on the problem about not over-burdening it with a formal assessment of capacity. (General practitioners in Scotland threatened to go on strike because they were filling in pieces of paper rather than giving care.) We are concerned about the lack of clarity in their Bill, as I instanced, on informal powers, what led people to seek informal powers more than is desirable. That is the main issue. But this process has not stopped, and I think we would be wise to keep the dialogue running.

  Q723  Baroness Fookes: Specifically, they lay great stress on their statement of principles, which is not in our draft legislation precisely in that format. Can you tell us why you have decided on the best interest as opposed to a statement of principles or something being of benefit?

  Lord Filkin: The best interest is one of the principles—probably it is a fundamental principle. It is really saying that people are making decisions in a situation where there is not capacity and they are not at liberty to act at large; they can only act in terms of the best interest. Secondly, there are a number of other principles in our Bill: the presumption of capacity, the functional test of capacity—it sounds a dreadful expression; in other words, making a judgment about capacity at the specific point in time when you need to rather than speaking once and for all. There is a requirement to take all practical steps to help people make decisions, in other words, not just making it a black and white issue. Also, when it is clear that a person does not have capacity, still striving to take their wishes into account. These are some of the principles that are in the Bill, and we think those are right principles. We are certainly open to reflection as to whether it would give people more comfort to put some of those principles all together in one section. We are not saying that we will do that, but we need to think about why we should not have a section making it very clear rather than requiring the effort of going through the whole Bill to find the principles at various points in it.

  Q724  Baroness Fookes: Some witnesses thought it would have been better if the statement that capacity is to be assumed unless proved otherwise should be at the very forefront of the Bill, Clause 1.

  Lord Filkin: I think I have covered that in what I said previously. If we do decide to re-order, that would be a powerful opening statement. The whole Bill hangs on that, does it not? I am personally sympathetic, but that was not meant to be seen as a governmental commitment.

  Q725  Chairman: Certainly, from the evidence we have heard, the perception of the Bill might be improved if the statement of principle were actually in the Bill rather than being hidden away in the various clauses. A number of witnesses would feel more comfortable and therefore the perception would be improved.

  Lord Filkin: I hear that, and although one always takes parliamentary counsel very seriously, if the public would feel more confident about something, we would take that even more seriously.

  Q726  Mrs Humble: Can I just ask you about the practical implementation of the legislation? When this Draft Bill in near enough this form, assuming that, becomes law, how would the two pieces of legislation be implemented, the Scottish Act and a new Act in England and Wales? Would it be based on the domicile of the individual concerned or would it be based upon the location of that individual should a decision have to be made about them? For example, somebody living in England, making an advance directive to refuse treatment, appointing somebody with lasting power of attorney, with a degenerative disease that will ultimately be terminal, decides in their last months to visit Scotland on holiday and, God forbid, they have an acute episode when they are there and find themselves in Edinburgh Royal Infirmary. They are incapable of making any decision. Would the advance directive to refuse treatment under the terms of the English legislation, which would apply to them if they were still at home in London or Blackpool, apply in Scotland or not?

  Lord Filkin: It is such a good question that I should take legal advice on it.

  Ms Johnston: This is a question about private international law, which is one of the most obscure aspects of the law that there is. Schedule 3 of the Scottish Act does deal with that. It deals with the jurisdiction of the Scottish courts. Before introduction we will have to add a bit to our Bill which deals with matching provisions. There are similar problems in relation to the Children Act, so it is an issue that has to be dealt with, but it is one of the areas where the Draft Bill does not cover the ground and will have to. Just for your information, the Scottish Act provides that the Scottish judicial and administrative authority can deal with matters if the adult is habitually resident, which is usually the test in international law, but there are complications in relation to real property, so land, the principle tending to be that the law of the country where land is situated has to apply to disputes about that land. I do not want to go on too much further. It is definitely a matter that would have to be dealt with before introduction.

  Q727  Mrs Humble: So you are saying to me—and I am not a lawyer; this is not a trick question—that you cannot answer what would happen in my hypothetical case, but you will at some point be looking at it. I just wonder if you might be able to give us some advice before we conclude our deliberations.

  Ms Johnston: The general principle would be that the law of the country in which you are habitually resident should apply. There are lots of cases on what that means.

  Lord Filkin: As a non-lawyer, that feels right. If we can give further detail than that within two weeks, we will do so.

  Q728  Mrs Browning: Could I ask you about the definition of "capacity" in the Draft Bill? Do you think the requirement for evidence of impairment of mental functioning and of impaired decision-making capacity before action is taken in a person's best interests is likely to be workable? Who is actually going to be responsible for this? Under what circumstances will a second opinion be required?

  Lord Filkin: In many cases, it would be known that the person had had a learning disability, say, from birth, or had had a very serious illness which had deprived them of significant capacity. So in some situations there would be evidence that clearly pointed to that. The second question is who would have to decide. The answer would be anybody who was in a position whereby they might have to make a decision in the place of the person themselves, so it could be anyone from a relative deciding whether to take them on holiday or not to and a doctor deciding whether or not medical treatment was needed. Again, the diversity of the situations is relevant to the judgment, because if the judgment about incapacity was uncertain, and the consequence of the action was significant, for example, a major operation, then in that situation you would expect that the decision-maker, because there was uncertainty about capacity, would seek a second opinion and/or guidance from the Court of Protection. That is why we have both those measures and principles in the Bill. As you know, we are dealing with an enormous variety of circumstances when a decision may have to be taken on behalf of someone else. Those are the broad principles that would apply.

  Q729  Mrs Browning: Can I just ask you about that, because you seem to be indicating that a long-standing diagnosis or accepted condition should in perpetuity be recognised by professionals and non-professionals as a lack of capacity, and yet we heard yesterday from adults with learning disabilities about their concerns about this particular Bill, particularly, for example, in some cases—but only in some cases—where parents and carers took decisions about them, the diagnosis and the lifelong condition is not being questioned. What they are questioning is people's ability to recognise that in fact, in many circumstances, they do have capacity, and in particular, very worrying evidence from directors of social services about the amount of abuse that goes on, particularly of elderly and learning disabled adults. What I am concerned about, Lord Filkin, in your answer to us is that it seems to be contrary to the very ethos of this legislation, which assumes capacity and then has to be proven not to be, therefore what went before surely has to be tested again against the benchmarks of this Bill. If I could add to that, what about those very difficult cases where capacity necessarily fluctuates, psychiatric conditions where people do have capacity and then it fluctuates with current mental illness? You cannot just assume that, because there is a diagnosis, there is no capacity.

  Lord Filkin: No, I agree with that. The impairment is an initial hurdle as part of an assessment of capacity which needs to consider other issues as well. In some situations, the ones I gave, one would have to look at whether the lack of capacity was clear or not. That would be a further question, and I instanced that before. Is it permanent? Even if it were clear and it were permanent, one would need to ask whether there was capacity in that particular decision and circumstances, because whilst all of us may have a capacity for some decisions in some circumstances, most of us, including the people that we are most concerned about, clearly would have capacity for some decisions. Therefore, there is a constant burden of responsibility on both informal carers and professionals to apply that sequence of tests. What about fluctuation? In fluctuating conditions there is perhaps an even greater burden on the person to ask whether the decision can wait. If the decision can wait, one should do so. If the burdens and costs of waiting are bearable and the person might well have strong feelings about it, it is better to wait in that situation.

The Committee suspended for a division.

  Q730  Baroness McIntosh: I wanted to pick up this issue of those who appear to lack or do lack some capacity but can, with help, be brought to a position where they can make decisions. It was put to us yesterday that, on a lot of occasions, people are denied the right to take decisions on their own behalf because what is required in order to help them to do that is a great deal of support and time. I wonder whether you could tell us whether you believe that the Bill will in time be supported with the degree of resources it will need in order to make its aspirations achievable?

  Lord Filkin: As you know, the government cannot introduce into a House a Bill without having clarified the financial resources to support it. That is what we have to do. In clause 2(3), a person is not to be treated as unable to make a decision unless all practical steps to help them do so have been taken without success. With care and patients, the level of ability to get people to participate in decisions or to make decisions themselves has moved very considerably over the last 20 years. This all takes time and that has an implication for resources. In part, that is what best practice in care professionals will be doing already. That would be the ethic that we would expect social workers and doctors to operate. Part of our assessment on resourcing will be to what extent best practice is currently met or if there is a gap between average and best practice.

  Q731  Baroness McIntosh: One of the reasons why best practice might not be achieved in comparable areas, we have been told, is that there simply are not enough people with the relevant skills. It is at least possible that part of the reason why there are not enough people is that there is not enough money to pay for those people to be trained, or for people who have some skills to acquire others. The question of putting resources into creating resources is going to be as important as funding directly the particular provisions of the Bill.

The Committee suspended for a division.

  Ms Winterton: We are looking at some of the long term implications particularly for health and social care staff, regarding implementation and the likely training to be required. The codes of practice that were issued by the Lord Chancellor's Department as was, when I was there, have gone some way to raising awareness about the issues of incapacity, how to assist people in making decisions, recognising the fluctuating capacity considerations. Obviously, that will change when the Bill is passed but there is that increased awareness which is quite helpful, particularly in terms of training health and social care staff. It is difficult to give, particularly at this point, precise estimates of cost but what we have tried to do is to put together a model to see what the transitional and longer term costs would be. Perhaps I can go into a little detail about how we have done that. What we have tried to do is, first of all, work with policy experts, stakeholder organisations, health and social care professionals. We have said, "Can we assess from your point of view the likely impact of the Mental Incapacity Bill?" We look at the work they currently do and see how that will be increased or whatever by the demands of the Bill. We have also had workshops in various places like Birmingham, London, Cardiff and Manchester to work with those individuals to say, "Let us take this down to practicalities and see what else you need to be doing. Let us look at any additional demand. Let us look at the type of training that would be necessary to do that." We have also looked, where we know there is best practice at the moment, at how in the meantime that could be spread so, where we know that people are working to the high standards that would be required under the Bill already, we can then make an assessment from that as to likely costs. What that is showing so far is that we do need to look at some of the other assumptions as well—i.e., numbers of people who may be involved in the care and training that perhaps is already available, for example, and how we need to enhance that where there are other training opportunities that it can be linked into. We are trying to get a much clearer idea of what we would be looking for in terms of those staff members and workers in the health and social care field.

  Q732  Mrs Browning: Have you calculated what the costs would be if a facility for independent advocacy was added to the Bill?

  Ms Winterton: No, except that in terms of the range of decisions that are going to be taken under the Bill and obviously the numbers of people that would be involved, quite frankly, it would be extremely difficult to envisage that there would be the scale of resources available. My impression as well would be that it is not always applicable in individual cases. There may be people who feel that is not appropriate for them individually. To say that we could look at the whole range of people who would be covered by the Bill and imagine that in every case there may be an advocate would be unrealistic for us.

  Lord Filkin: I think I would emphasise "undesirable" also because there are very many situations in which there is not a need for a formal advocate. There are other situations where there might be.

  Q733  Mrs Browning: You will be aware that various groups who have given evidence to this Committee, not just the people themselves who might have their capacity analysed, have made the case that in order to bring balance to those people whose capacity is being questioned independent advocacy would give the balance to that individual which they feel is tilted in favour at the moment of carers and professional staff. I hear what you say about the need to train and provide professional staff, but unfortunately in many practical examples one can think of right across the board, whether it is learning disabled or elderly, it is challenging what professional staff believe the right thing to do is for that individual that requires the input of independent advocacy. If this is not to be a charter for statutory services but is to be a charter for the individual and that independent advocacy facility is not there, it could leave this Bill subject to the criticism of not really being balanced in favour of the individual.

  Ms Winterton: There is increasing support being given to advocacy and, through things like Valuing People, we have tried to increase that. There is a clear commitment to do that in appropriate circumstances, but I would come back to the point that Lord Filkin made that it is not in every one of these situations that it would be appropriate. Where there is increasing provision, that may well be used, but it would just be impossible to say that we can guarantee that in any one of those situations it is possible.

  Q734  Mrs Browning: One of the difficulties with advocacy for anybody who is subject to decisions being made about them is that there is a real problem between the advocate being the same person who is employed by the statutory services who holds the purse strings and knows what the availability of choice is. For example, I do not believe social workers can truly be proper advocates for the individual because they are in the pay of the body that determines what is and what is not available. It is that problem that still exists now but which we also come up against, not in every case, but in many cases in this legislation.

  Ms Winterton: Yes. I think though that, at the same time, you could look at some of the safeguards that will be there through things like the Court of Protection. In this circumstance, you would perhaps be looking into a deputy if it was not the person who had the lasting power of attorney. You are talking about somebody who is able to undertake the care of the person but who is an independent person. In those circumstances, there is of course the safeguard of being able to make an appeal against the decisions being made.

  Q735  Baroness Fookes: In an informal situation, what steps might a concerned outsider take if he or she felt that the best interest principles were not being observed?

  Lord Filkin: They would have a number of recourses, partly depending on location. If, for example, they thought a residential care setting was not appropriate for a particular person, there would be a range of locations they could raise that complaint to.

  Ms Winterton: I did not realise what you were getting at. I thought you were talking about the court procedure.

  Q736  Baroness Fookes: Let us start from the first principle: a concerned outsider is worried. What is the first step he or she would take?

  Lord Filkin: You would go to the most immediate point of redress rather than jumping into court, for all sorts of common sense reasons. There is a range of complaints mechanisms in social care and health when individuals feel that someone is not being appropriately treated. These have been substantially strengthened in recent years.

  Ms Winterton: If you were thinking in a wider sense perhaps of something a bit more sinister, where there was worry about abuse, I would draw attention to the "No Secrets" statutory guidance which we at the Department of Health publish, which is about the protection of vulnerable adults and which requires local authorities to set up a multi-agency approach for dealing with complaints of that kind.

  Q737  Baroness Fookes: One would go to the local authority or specifically the social services arm of the local authority?

  Ms Winterton: If a person was a deputy or had lasting power of attorney and they were complaining about the type of care that had been given to the individual who did not have capacity, there would be things like the patient and liaison service in a hospital and ICAS which has been set up to deal with specifically NHS complaints. There is also CHAI, the inspectorate, which would look at the various areas as appropriate. That would be the situation whereby one would complain about the type of care that had been given. Going wider than that to the point about abuse, you hear something going on next door that makes you feel there is something going on that you are very uneasy about. That is why the "No Secrets" guidance was published and sent out, so that within each local authority area there would be established a multi-agency approach. Many of them have used adult protection committees to bring together people from the different agencies so that they have a recognised and agreed strategy for dealing with such complaints.

  Q738  Baroness Fookes: Are you satisfied that there are sufficient staff to enable this to happen in practice?

  Ms Winterton: Certainly it is something that we need to keep under review to make sure that the committees are working in the way that we would like them to. That is an ongoing commitment. Some of the local authorities will approach this in different ways. Some of them may be doing it with different time constraints. As a last resort, the Court of Protection also has powers to order where a person's best interests would lie in the previous situation that you were referring to.

  Q739  Chairman: I would like your views particularly on euthanasia and past decisions. I am sure you are aware we have had a very large amount of evidence on the subject. Can more be done to assuage the concerns of the many who see this Draft Bill as proposing euthanasia by the back door? Should a specific exclusion be written into the Bill? Are other safeguards needed? Is there a need to look again at the definition of "treatment" or to define "basic care"?

  Lord Filkin: We have been surprised by the extent of representation made about euthanasia under the Bill. Because of that, I wrote to MPs and peers to find out what was the position, firstly emphasising the aim of the Bill is to empower adults with mental incapacity to make as many of their own decisions as possible and, where this is not possible, to ensure that there are safeguards to protect them. Doctors are always obliged to act in a patient's best interest. Sometimes that will mean that more futile treatments are not given. However, euthanasia is quite different. It is a positive act carried out with the intention of ending life. The Bill contains no definition of euthanasia because it does not concern euthanasia. In a sense, it is quite difficult because I think some people do wish to believe it is about that; whereas it seems to us the Bill is not about that. I think all we can do is to keep on trying to find ways of saying that very clearly. The point is euthanasia is against the law and the government has no intention whatsoever of changing that position.

  Baroness Knight of Collingtree: Indeed, there is reason for concern because what is already happening is quite clear. Patients are being denied food. You could say that it is not a positive action not to give food. I hope that is not the response. Certainly time and again it is on record now that patients in hospital are not being given the necessities to keep them alive. The fact that the Bill does not really address this clearly is what has given cause for the concern expressed.

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