120.Memorandum from the British Association
of Social Workers (BASW) (MIB 997)
BASW welcomes the publication of this Draft
Bill. However, we agree with the Law society response in stating:
"that whilst we would wish
to fully embrace these proposals it is not possible to understand
the impact of them without first examining the code of practice
which accompanies the legislation."
We would highlight particularly the following
issues and append a further submission from BASWs special interest
group in this specialist area.
BASW is the largest organisation of qualified
professional Social Workers, which publishes Professional Social
Work on a monthly basis. We have professional officers for Scotland,
England, Wales and Northern Ireland and a number of specialist
groups with particular interests. BASW has produced a professional
Ethical Code of Practice, which is widely accepted as definitive
for Social Work practice.
1. The Best Interests principle is a legal
one, and to some extent could be criticised as being subject to
paternalism or indeed medical paternalism since it seems to be
largely within the realm of a medic to decide. As Social Workers
we are concerned that the issue of capacity and its determination
is really a social determination rather than a medical one. Medics
could be accused of partiality in this matter since it would appear
the issue is only investigated when a Treatment (Medical) is at
issue and then a medic determines whether a person lacks capacity
to give consent and then arranges for someone to make decision
on their behalf. At best one could argue that a different medic
should make the determination on capacity to avoid the possibility
of invested interests being possible.
2. Who decides what is in the "Best
Interests" is clearly an issue that the Bill has given some
though to, and many group appear to misunderstand. We believe
the Bill to be saying that the substitute decision maker should
not be deciding what they feel is in the Best interests of the
patient, or what the doctor feels is the best interests namely
the Treatment in question, but what the patient themselves would
have wanted. This is a difficult concept and LPAs and deputies
and the Courts need to be clear about this. Advance statements,
refusals and directives are very important here and should be
encourage for all those with fluctuating or deteriorating capacity
and for those who lack capacity during acute or chronic phases
of illness. This is a practice issue, which should guide both
medics and social care professionals working with such patient
3. Clearly there is an issue for those patients
who never had capacity and how their care is managed and the role
of parents who legally would have had decision-making capability
during their childhood. Would Parents naturally continue to have
decision-making capabilities? It seems this issue needs clarification.
4. At the age of majority it would appear
that parental care decision-making is substituted my medical decision-making
and the role of carers is subjugated.
5. We are concerned that there should be
explicit statements that decision-making and capacity should not
be confused with a lack of ability to communicate. Communication
attempts should first be exhausted and those who are best able
to communicate utilised as interpreters. This should include family
members, carers, care professionals and not just the medics attempt
via what is normally a formulaic assessment of capacity.
6. We would like to see recognition of the
Social Care professional in the determination of capacity, to
provide a balance against the medical model, which may highlight
a need for treatment. The social care dimension would provide
a check and focus on the rights of patients to refuse treatment
as required by the Human Rights Act and indeed the Magna Carta.
7. We accept the view that capacity should
be presumed unless there is a need to challenge that presumption.
However, we do not accept that it is a medic that is the best
person to decide when to challenge that presumption and/or to
determine the capacity issue.
8. It would seem to BASW that capacity is
a social determination, which could be best undertaken by a social
care or psychological Professional rather than a medic. Capacity
loss may have a physical cause but its evidence is behavioural
or social in effect.
9. We would invite the committee to examine
in more detail the application of the Incapacity legislation in
Scotland from which we can learn many lessons.
10. We do not feel that the issue of fluctuating
capacity is fully explored within the Bill what happens when people
regain the ability to decide for themselves? How long does substitute
decision making last and can it be re-instigated without further
reference to legal determination? Perhaps social care professionals
could be used as arbitrators? Rather than expensive legal options.
11. We also have grave concerns about the
ethical position of a substitute decision maker especial where
drug trials or research and development are concerned. How can
a drug trial, which may offer no clinical benefit to a patient,
be in their best interests? It may be in the interests of medical
science or even other patients but we are reluctant to allow patients
who lack capacity with no ability to refuse or opt out or challenge
their own treatment to be subjected to either drug trials or R&D.
12. The Law Commission and the BMA have
already published guidance on the assessment of capacity from
a legal/medical viewpoint, we would like this guidance to include
and be available to social and psychology professionals to enable
the registration of professionals who may be able to undertake
this very important task with appropriate training in Medical/legal
and social perspectives on capacity.
13. A balance on the use of powers and an
ability to protect and intervene with patients who lack capacity
would be the development of a Public Law Duty to investigate and
protect patients where there is suspected abuse or neglect.
14. It is suggested within the Bill that
a criminal offence of "ill treatment and neglect" should
be created. We are concerned that this should be extended to cover
exploitation as well and should provide the ability to protect
the victim as well as prosecute the perpetrator.
15. The success of the Scottish Act is due
in no small part on the duties imposed on local authorities. In
addition there was created a "Mental Welfare Commission",
which has oversight of both the Public Guardianship Office and
the Local Authority. These practical safeguards are a desirable
feature, which should be incorporated into England and Wales legislation.
This should also prevent a two-tier system for the protection
of vulnerable adults being created in the UK.
16. We have concerns regarding the "General
Authority" to make decisions, whilst recognising the need
for some sensible operational system of managing day-to-day decision
making without building in adequate safeguards. Especially in
social care settings such as hospitals, care homes, day centres,
private homes and any public place or setting where services are
provided. The possibility of the misuse of the general authority
powers without safeguards is therefore great.
17. We are also concerned that there is
no legal definition of what constitutes "care" and whether
the Bill applies to people cared for in their own home or under
the care of a carer.
18. A number of Social Care organisation
have expressed concern about the possible abuse of the general
authority and a resolution mechanism perhaps utilising the Local
authority could perhaps be incorporated to address these concerns.
19. We are concerned that clarity is provided
to explain the role of different substitute decision makers where
more than one may exist for example one person may have financial
decision making capabilities whilst another welfare decision-making
authority. Conflicts should not arise, however, some arbitration
method should be established.
20. We are concerned that Local authorities
as well as the Health Trusts and PGO should be informed of all
LPAs in order to register them locally and ensure that LPAs are
21. We are also concerned that this Bill
should be financed appropriately and that means adequate resources
for the Court of Protection and an expansion of the role of the
PGO. Local authorities will need some extra financing to enable
social care professionals to undertake the role of public protection,
capacity assessment and assistance in development of advance statements
for those that require them.
22. We are concerned that patients who lack
capacity will be able to access legal aid for appropriate legal
representation. The lack of direct provision in Scotland produces
delays in legal proceedings and has reduced the effectiveness
of the Incapacity legislation.
23. We are concerned that the true costs
of this legislation are met by central government and that those
costs may be considerable.
24. Our other concern is that the Incapacity
legislation must be compatible with the new Mental Health Bill
and ideally should be considered in parallel. Issues such as ECT,
the role of a nominated person v an LPA etc. Must clearly be addressed
within both Bills.
25. Social Care Professionals mange the
care of people who either have fluctuating of deteriorating capacity
as part of their normal duties. The requirement to adress capacity
issues as part of their Care management/care programme Approach
should be routine practice. This is a development, which needs
to be addressed within the legislation.
26. Finally we are concerned that this Bill
has been issued without substantial work being undertaken on the
associated Code of Practice. We would like to be involved in the
progress of the Bill and Code since we feel that the social care
perspective on capacity is essential to ensure that rights are