Joint Committee on the Draft Mental Incapacity Bill Memoranda

BMA submission to the Joint Committee on the Draft Mental Incapacity Bill


(1) The British Medical Association is a professional association of doctors, representing the interests of all doctors in the UK. The Association has in excess of 127,000 members (around 80% of UK practising doctors are members). The BMA is an independent trade union and a scientific and educational body.

(2) The British Medical Association very much welcomes the publication of the Draft Mental Incapacity Bill and believes it to be a significant step forward in the care and treatment of incapacitated adults. The Association would, however, wish to draw attention to a number of issues, and these are set out below.

(3) The BMA is grateful for the opportunity to submit evidence.

"Best interests" or "benefit"

(4) How "best interests" are interpreted in practice will be central to the success of the legislation. No attempt, however, is made to define "best interests" in the Bill. The equivalent Scottish Bill uses "benefit" instead of "best interests" and it would be useful to explore their respective advantages. It is possible, for example, that "best interests" might preclude any possibility of a treatment or intervention that does not harm, or risks only minimal harm, to the incapacitated person but that could provide a significant benefit to a third person. Presumably, any intervention that the individual would have clearly wished to occur would be considered to be in that person's wider interests, even if not clinically beneficial. This might include, for example, genetic testing to benefit other members of the family. If this cannot easily and clearly be incorporated into the Bill, the BMA would like to see a separate clause introduced in the Bill that would enable, with appropriate safeguards, the possibility of interventions of this kind.

Scope of power of attorneys

(5) According to the Bill, a lasting power of attorney (LPA) does not extend to the refusal of consent for withdrawing or withholding life prolonging medical treatment unless it is specifically mentioned in the LPA. The BMA is concerned that this might serve to create a presumption that unless it is specifically rejected in the LPA, patients would always want whatever treatment was available. The BMA is concerned that this implies that treatment is almost always in the best interests of the patient. The BMA considers, in contrast, that treatment should only be provided where it is likely to provide a net benefit to the patient. If this clause remains, it must be made clear that continuing invasive treatment should not be given when it is not in the patient's interests, even if the attorney has not been authorised to refuse life-prolonging treatment.

Scope of general authority

(6) The BMA has a number of concerns with the general authority. These are listed them below:

  • What are the limits of the general authority in relation to medical treatment? Are there thresholds of severity beyond which the general authority cannot extend, and if so, where do they lie?
  • Are there any limits to the general authority in terms of necessary as opposed to optional treatments?
  • How will conflicts between the LPA and the general authority be managed? Also, how will conflicts between individuals who both believe they are operating under the general authority be managed?

(7) Clear guidance will therefore be needed in the Code of Practice as to the scope of the general authority, at what point a decision by a proxy or the Court is required, and whether the Bill applies to "necessary" as opposed to elective treatments, even though the elective treatments might benefit the patient.

Dispute resolution mechanisms

(8) How will disputes between attorneys and health care workers and between separate individuals both of whom may believe they are operating under the general authority be managed? Although the Bill creates a provision for recourse to the Court of Protection for rulings on single issues, the BMA would like to see the Code of Practice containing detailed advice in relation to mechanisms for the local management of disputes about the best interests of the donor, particularly, for example, where the decisions are not of the gravity of withdrawing life-prolonging treatment but nevertheless raise best interests issues.

(9)Advance decisions
  • The BMA welcomes both the inclusion of advance refusals in the Bill, and the clarification, under section 25, of doctors' non-liability where they act in good faith in accordance with what they reasonably believe to be a valid advance directive, or where they act in contradiction to an advance directive that they did not know existed.

  • The BMA would like to see mention in the code of practice that unless a woman's advance refusal specifically refers to refusal of life-prolonging treatment while pregnant, it is extremely unlikely that the refusal will be deemed to be valid.

  • No mention is made of the relation between the Incapacity Bill and mental health legislation in regard to advance refusals. It is the BMA's understanding that, currently, advance refusals are not applicable to treatment provided under mental health legislation. The Association would not wish to see any change in this position.

  • The Association would like to see mentioned in the Bill that an advance refusal or directive would not be valid if it was produced under coercion.

  • The BMA is concerned that some existing advance directives may be deemed invalid if they do not meet the specific requirements of the Bill. The Association would not want the Bill to take away any existing common law mechanisms for making advance statements.

  • The BMA considers that people should not be able to refuse, in advance, the provision of "basic care", which, in the Association's view, includes the administration of medicine, or the performance of any procedure which is solely or primarily designed to provide comfort to the incapacitated patient or alleviate that person's pain, symptoms or distress. The Association would like to see this in the legislation or the code of practice.

Codes of practice

(10) The Association would hope to be involved in any consultation process where the code or codes of practice will have an impact on the work of doctors or other health care workers.

Other issues


(11) While the BMA considers that, as a matter of general principle only competent adults should be considered as live organ donors, and supports the view that proxies would not be able to consent to live donation, the Association would wish for scope to remain for truly exceptional cases to be considered by the courts on an individual basis.

Power to call for reports.

(12) The Bill refers to Lord Chancellor's Medical Visitors and the requirement for them to carry out medical examinations of individuals who may lack capacity, and who may also be required to inspect those individuals' medical records. What powers will these Visitors have where individuals do not consent either to examination, or to the release of their medical records? For example, where it is believed that an individual may lack capacity and a medical report is requested, will the Visitors be able to proceed in the face of a refusal from the individual concerned? If not, how will such a situation be managed? Is the post and role of Medical Visitor a new post or are Medical Visitors already employed by other statutory bodies?

Restrictions on the general authority - the use of force.

(13) While the BMA fully endorses restricting the use of force or other constraint to interventions solely directed at promoting the best interests of patients, there may be some unintended consequences of the Bill as drafted. Would leading or guiding an incapacitated person by applying slight directional pressure constitute a use of force and if so could it only be justified in order to avert a risk of serious harm? Bournewood highlighted uncertainty about the issue of whether compliant incapacitated persons were in fact detained. What would actually constitute a statutorily significant restriction of liberty and would it always need a substantial threat of significant harm to justify it?

September 2003

(1341 words)

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