DRAFT MENTAL INCAPACITY BILL
A CRITIQUE BASED ON THE SCOTTISH EXPERIENCE
This document is a collection of thoughts by one
Scottish Psychiatrist who has experience of operating the Act
and who has given advice on the development and implementation
of it. It is based on my own experiences and concerns relayed
to me by others, mainly in the medical profession but also social
workers, lawyers, patients, carers and voluntary organisations
with whom I have been associated. I will comment mainly on provisions
of the Bill regarding personal welfare and medical treatment rather
than financial matters.
Definition of Incapacity
Section 2 defines incapacity. The definition is very
similar to the test of competence in case law, notably Patient
C in Broadmoor Hospital. The Scottish definition is not dissimilar
to this. In Scotland, incapacity is defined as being incapable
of acting or making decisions or understanding decisions or communicating
decisions or retaining the memory of decisions. On balance, I
prefer the definition in the draft Bill. The main difference is
the question of retention of information. It is my opinion that
a person does not have to spontaneously recall all the decisions
he or she makes in order to be regarded capable of making these
decisions. I cannot recall the decisions I made at my last outpatient
clinic but I do not think I am incapable of making these decisions.
I made a written record of the decisions and I will (hopefully)
agree with the written the record that I made and recognise that
as having being my decision at the time. I would therefore advise
that, as far as memory is concerned, the definition is increased
slightly. In addition to retaining information for long enough
to make a decision, the person must make that decision consistently
on the basis of the same information and/or agree with a record
of that decision when presented with it and recognise that as
being his/her wish. Otherwise, I applaud the definition of incapacity.
I dislike the term best interests as it sounds paternalistic.
The general principles of the Scottish Act are better. The Act
stipulates that any intervention must be for the benefit of the
adult, must be the least restrictive in relation to the adult's
freedom, stipulates that the past and present wishes of the adult
must be taken into account and confers a duty to take the wishes
of others into account in so far as it is reasonable and practicable
to do so. The Scottish Act has a further principle that applies
only to people holding certain offices under the Act to encourage
the adult to use existing skills and develop new skills.
With regard to the draft Bill, in addition to substituting
benefit for best interest, I applaud the duty to encourage participation
under Section 4(2b).
The General Authority
I have grave concerns about Section 6 in its
My reading of this section is that I could tell a
fund holder that a person is incapable of using money to pay for
certain services, use money from his account to pay for it and
use money to pay for my own expenses in doing it. This, in my
opinion, is a recipe for abuse and fraud. Even with a very tight
Code of Practice, I would still have significant concerns that
any of us might be open to being financially abused by this Section.
In Scotland, a simple mechanism for withdrawal from accounts exists
under the Adults with Incapacity (Scotland) Act 2000. If Granny
forgets to pay her bills, I can obtain a Medical Certificate of
Incapacity from her doctor, obtain a form from the Public Guardian
stating what I want to use her money for and have my application
countersigned by a person of standing in the community (passport
signatory sort of person). Armed with this and with the approval
of the Public Guardian, a fund holder is authorised to transfer
money from Granny's account into a separate account operated by
me. I must keep records at all times of this because the Public
Guardian, who will know of all such mechanisms, can spot check
at any time. The mechanism is simple and easy to operate, the
only potential difficulty being finding a person to do it as it
must be a relative or friend and not somebody acting in a professional
capacity. In my opinion, it is an appropriate mechanism and offers
the adult much more protection than Section 6 of the draft Bill
I have similar concerns with regard to medical treatment
but our experience in Scotland has been mixed in trying to make
the Scottish Incapacity Act work. As I read the draft Bill, it
would authorise reasonable medical treatment that is in the "best
interests" of the person and subject to the general provisions
of the best interests test. In Scotland, medical treatment always
requires a Certificate of Incapacity expect for emergency cases.
Also, medical treatment is very broadly defined as "any procedure
designed to promote or safeguard the physical or mental health
of the adult". This has proved very difficult to work for
many reasons. Many of us believe that the definition of medical
treatment is too broad, the needs for certification should be
reserved for major treatment decisions in order to achieve a balance
between protecting the adult against possible assaultitive treatment
and allowing healthcare professionals the scope to do what is
reasonable for the benefit of the person. This part of the Scottish
Act is currently subject to consultation. It is my contention
that basic care, known as "fundamental healthcare",
should not be subject to any formal procedure under the Act. Also,
acute, short term treatment that would not normally involve the
signed consent of the patient, should be in this category. Obviously,
anybody intervening in such a way will follow the general principles
laid out in the Act.
I do recommend a degree of scrutiny for certain categories
of treatment. In Scotland, there are regulations under Section
48 of the Scottish Act that prohibits some treatments and puts
conditions on others. Although not written down, there is an understanding
that neurosurgery for mental disorder is exempt from the Act and
not permitted using this piece of legislation. The Court of Session
must approve sterilisation for non physical reasons and hormonal
implants to modify sexual drive. Some other treatments are made
subject to a second opinion provided via the Mental Welfare Commission
for Scotland. These are Electroconvulsive Therapy, abortion, hormonal
drug treatment to reduce sexual drive and any treatment that is
likely to lead to sterilisation as a consequence. There was much
discussion about medication for mental disorder continuing beyond
three months (or probably two months now to be consistent with
the new Scottish Mental Health Act). It would be impractical to
insist on second opinions but there are strong anxieties about
the use of medication to modify behaviour. There are numerous
studies in nursing homes suggesting that medication is overused.
Under the Scottish Act, treatment is carried out using a Certificate
of Incapacity, often using a Treatment Plan for which a template
exists in the Code of Practice and therefore documenting the need
for treatment and the consultation with others including the primary
carer and nearest relative.
I would predict that many organisations will express
anxieties that medical treatment will be essentially unregulated
by this Bill but I would encourage legislators not to go as far
down as the certification/documentation road that Scotland has.
I recommend that the general "best interests" test should
apply to fundamental healthcare procedures and that these should
include basic nutrition, hydration, skin care and integrity, oral
care, elimination, eye sight, hearing, communication, mobility
and simple measures to relieve pain and discomfort. It might also
include general medical examination and continuation of any long
term treatment to which the patient consented while capable. This
might include long tern treatment of diabetes, heart disease,
chronic bronchitis etc. I think there is considerable merit in
people with significant incapacity having a Medical Treatment
Plan that is subject to annual review. This is good practice and
would be cemented by being enshrined in legislation. Also, a Certificate
of Incapacity should be required for single interventions that
would ordinarily require the signed consent of the patient and
such certificates should indicate consultation with relevant others.
However, many of us believe that the Scottish Act has gone too
far in subjecting all medical treatment to certification under
the Act and it is being largely ignored in many areas, especially
in acute care. I therefore recommend a period of time where a
test of benefit / best interest is expected but where there is
no need for any formal mechanism unless signed consent would be
This is an extremely complex area, I have no doubt
that many submissions will be made regarding this and it requires
careful consideration to produce workable legislation, backed
up by systems to assist and monitor the use of the Act, again
something that we did not do in Scotland.
Powers of Attorney
I have no specific thoughts about financial issues.
These would be better dealt with by people with greater knowledge.
Clearly, the welfare powers might include consent to treatment.
Given the uncertainty as outlined above, the Bill should be clear
about the role of attorneys with regard to consent to medical
treatment. This caused some confusion in Scotland where it was
not clear whether a Certificate of Incapacity was required in
addition to the attorneys consent. In the Code of Practice, the
decision was that both certification and consent were required
but some doubt has been cast on this and this is subject to consultation
Again, I will mainly comment on welfare provisions.
In Scotland, we have run into difficulties with "Welfare
Guardians", roughly equivalent to the Court appointed Deputies
envisaged by the draft Bill. We need to decide whether the appointment
of such an office is permissive or prescriptive. For example,
does the best interests test apply to a decision to move a person
from his or her own home into a care establishment when the person
lacks the capacity to make such a decision? This has been interpreted
in different ways in different parts of Scotland. Where there
is a strict interpretation that this is prescriptive and that
all such decisions must require a Guardian (or Deputy), this has
the potential for adding to delayed discharge problems in hospital
and might leave people open to a risk of harm if a decision is
delayed by court process. Also, the amount of court time that
could be taken up would be prohibitive. It is clearly a mechanism
that could and should be used where the person resists.
In addition, there is the question of medical treatment
where the person actively resists or opposes the treatment. This
is unclear in Scotland but I consider that an Intervention Order
is appropriate. There appears to be no equivalent procedure in
the draft Bill, i.e. a single order to cover a single intervention
for healthcare, personal welfare, finance or property. I presume
that it would be the appointment of a Deputy for a short period.
With regard to the powers of a Deputy, the Scottish Act and Codes
of Practice are not clear as to the provision of healthcare in
the face of active resistance by the patient and I recommend clarity
in the draft Bill over this issue.
Other Issues Relating to Medical Care
Any Attorney or court appointed Deputy may
have the power to consent or refuse consent to medical treatment.
However, it must be clear that such a person does not have the
authority to require any healthcare worker to provide any particular
Advanced Decision to Refuse Treatment
I welcome this part of the Bill that is a helpful
clarification of the law and is consistent with case law and the
good practice statement on this subject from the British Medical
Association. However, see the subsequent note on Mental Health
Mental Health Act Matters
This is an interesting short clause (Section 27)
and might cause some problems.
The regulations under Part 4 of the Mental Health
Act include treatment for mental disorder for more than three
months. My reading of the draft Bill is that it would therefore
be unlawful to treat a person for mental disorder with any medication
for that disorder for longer than three months. It would then
appear that the correct procedure would be to treat the person
under the Mental Health Act. For people in the community and in
care homes, this would be inappropriate, impossible to administer
and highly restrictive on peoples freedom. Also, it would result
in an enormous extra burden of work for the Mental Health Act
Commission who would have a duty to arrange an independent opinion.
The situation as regards Electroconvulsive Therapy
is also thrown into doubt by the Bill. As I understand it, it
would be unlawful to treat a person with incapacity with Electroconvulsive
Therapy even if the person were not resisting the treatment. The
correct procedure would be to detain the person in hospital under
the Mental Health Act. In Scotland, Electroconvulsive Therapy
is a regulated treatment and it is possible to treat a person
who is incapable of giving consent to the treatment but not actively
resisting the procedure using the Incapacity Act with similar
mechanisms for an independent opinion as exists under the Mental
Health Act. I have found this a useful mechanism and less restrictive
on peoples freedom. The situation in the draft Bill would require
detention in hospital in every case. In my opinion, that should
be the situation in law at present and I strongly disagree with
the NICE "Good Practice" statement in ECT which suggests
that it would be appropriate to administer treatment informally
with full discussion with relatives, etc. I favour the Scottish
Also, as I understand the Bill, the fact that treatments
regulated under Part 4 of the Mental Health Act are excluded would
mean that a person could not make an Advance Statement refusing
Electroconvulsive Therapy. This may be of concern to some user
groups. In Scotland, we have had protracted discussions about
this and the new Mental Health (Care and Treatment) Act contains
provisions for a person to make an Advance Statement in respect
of treatment for mental disorder but that this Statement could
be overturned by a Mental Health Review Tribunal. This is an issue
that would require further consideration.
Taking all the above into account, I very strongly
recommend that Section 27 is dropped and replaced with a section
on regulated treatments and recommend the list of treatments regulated
in the Scottish Act.
Court of Protection and Public Guardian
My general concerns about these sections relate to
the investigation of the use of powers by Attorneys and Deputies.
In Scotland, the Public Guardian has a duty to investigate any
concerns regarding a continuing financial Power of Attorney and
a local authority duty to investigate concerns over Welfare Powers
of Attorney. Any person with an interest may bring such matters
to the attention of these bodies. The Mental Welfare Commission
also has a role with regard to welfare where there is dissatisfaction
with the local authority's investigation. For Guardians (the equivalent
of Deputys, I think) the Public Guardian supervises financial
Powers of Attorney and the local authority supervises the use
of Welfare Powers.
I have personal experience of referring matters regarding
Powers of Attorney to both Public Guardian and the local authority
and I find these useful mechanisms. From my reading of the Bill,
I am not clear how concerns about the use of powers might be relayed
to the court and also whether that mechanism is perhaps too cumbersome
in the first instance and that the initial complaint or concern
should be investigated by direct referral to either the Public
Guardian or the local authority as is the case in Scotland. Perhaps
this could be considered.
The draft Incapacity Bill is welcomed and has much
to commend it but it is my opinion that the general authority
outlined in Section 6 is far too broad and that parts of the Act
dealing with medical treatment and, in particular, the interface
with Mental Health Law and the lessons from the Scottish experience,
need to be rethought.
I hope these thoughts are of interest to the Committee
and I look forward to discussing any of these matters or any other
matter that the Committee wishes to raise with me.
Please note that, although I am presently the spokesperson
for the Royal College of Psychiatrists in Scotland on the Act
and I may have another significant national position in relation
to the Scottish Act, the opinions stated are largely my own with
input and advice from others who have discussed matters relating
to the Act with me. They should not be taken as an official position
of any other body within Scotland.
McGrath AM, Jackson GA.
|Survey of neuroleptic prescribing in residents of nursing homes in Glasgow.|
BMJ. 1996 Mar 9;312(7031):611-2.
Fahey T, Montgomery AA, Barnes J, Protheroe J.
|Quality of care for elderly residents in nursing homes and elderly people living at home: controlled observational study.|
BMJ. 2003 Mar 15;326(7389):580.
BIOGRAPHY OF DR DONALD LYONS
Consultant in Psychiatry of Old Age and Medical Adviser for Elderly
Services for Greater Glasgow Primary Care NHS Trust.
Member of the National Implementation Steering Group for the Adults
with Incapacity (Scotland) Act 2000.
Spokesperson for the Royal College of Psychiatrists on the above
I am also a specialist in the administration of Electroconvulsive
Therapy and a founder member of the Scottish ECT Audit Network.
I was a member of Council of Alzheimer's Scotland - Action on
Dementia for 8 years and have published extensively on the Scottish
Lyons D. (2002) Medical Treatment using the Scottish Incapacity
Act: Will It Work. Journal of Mental Health Law 7 197-202