Examination of Witnesses (Questions 20-39)|
10 SEPTEMBER 2003
Q20 Mrs Browning: You must have more
resources than we have, then!
Mr Ward: Yes. I suspect that more
often the principles have been used to give authorities a hard
time than they have been used to give carers a hard time, but
to a certain extent the approach is objective and there is the
obligation to take account of the relatives and primary carers'
views. Anybody making a decision has to do that.
Q21 Laura Moffatt: I am interested
in the comparison. We are trying to tease out on this Committee
the difference between what you clearly see is the benefit of
not having just a general view and the fact that there must be
a benefit to a particular person if you are to achieve the outcome
you are looking for. This prelegislative scrutiny has attracted
a lot of attentionperhaps unfairlybecause some people
have focused on the problem of artificial feeding and hydration
as one of the basic things we are attempting to deal with. We
see that as not being true and probably unfair, and we need to
broaden people's aspects of what we think we are trying to do
here and try to get them to understand it is much wider issue.
But could you tell me under the Act that you have how you would
describe withdrawal of artificial hydration and artificial nutrition
as a benefit to that particular person?
Mr Ward: Firstly, I should point
out that while refusal and withdrawal of treatment was a topic
included in the draft Bill for Scotland prepared by the Scottish
Law Commission that was dropped by the Scottish Executive in our
legislation, so we have had the benefit of discussion and consideration
of that point in the lead-up to our legislation. Because of that
I can answer the second part of your question and I may come back
to first part. It was never envisaged that we would be saying
that to withdraw some form of medical intervention would be a
benefit. The result that our principles produce in that situation
would be to ask the question, "Is the medical intervention
a benefit? Is the provision of the artificial feeding or hydration
a benefit?" If it is judged not to be a benefit or to have
ceased to be a benefit, it is that intervention which is no longer
justified and is not given or is withdrawn. So there is not a
benefit in withdrawal, but the provision or the treatment which
is the intervention may cease to be a benefit.
Q22 Laura Moffatt: But when questioned
before you said that not taking action was a legitimate intervention?
Mr Ward: Yes.
Q23 Laura Moffatt: So that gives
it equal status?
Mr Ward: Yes, but that is the
view the Scottish Law Commission took. They recognised the difficulty
of the point, and that is the approach they took.
Q24 Baroness Knight of Collingtree:
The BMA recently decided that they would call giving food and
liquid through all these methods "treatment". Has that
altered your own way of managing affairs of this kind, because
there is a great deal of concern about the fact that, being called
"treatment", feeding people can be disallowed or stopped.
Mr Ward: I am aware of that debate:
I do not think that the issues of terminology are having an effect
of which I am aware in Scotland, and these are essentially issues
of terminology. I am aware that some legal systems, not British
ones, make a clear distinction between the care and treatment
and I do not think we tend to in the United Kingdom. I do not
know if my colleagues agree?
Mr McClements: I think we agree
Lord Rix: Is there not case law in this
Q25 Chairman: I was about to ask
that. Would the Bland judgment, which I think has driven
the BMA view, have any influence or effect in Scotland? If there
were a case brought to court about withdrawal of treatment, would
the decision of the Law Lords here in the Bland judgment
have any effect?
Mr Ward: We tend to look at a
case called the Law Hospital case in Scotland, which is
the name of the hospital where the lady was, and that is our leading
case on the subject. Part of the reason why this topic was not
carried through into our legislation is that that case arose after
the Scottish Law Commission had reported, and the Court of Session
provided some very clear guidelines on when they considered that
withdrawal or termination of treatment might be appropriate and
on procedural aspects as well, so we have switched to a judicial
development of this area of law. The official reason given by
the Scottish Executive for not retaining such matters in the legislation
is that "attempts to legislate in this area will not adequately
cover all situations which might arise and could produce unintended
and undesirable results in individual cases".
Q26 Chairman: Does that mean they
are leaving it to the courts to decide?
Mr Ward: Yes. The courts have
greater flexibility and it has been left to the courts.
Q27 Chairman: It is the Scottish
equivalent of common law, in effect?
Mr Ward: Yes, based on the Law
Hospital case which you could say in rough terms is the Scottish
equivalent for us.
Q28 Chairman: That is very helpful
Mr Ward: I am not saying that
is necessarily a view I would personally advocate, but that is
what happened in Scotland.
Q29 Baroness Fookes: Could we ask
what you do advocate, then?
Mr Ward: Both on this and the
other topic that was dropped from the Scottish legislation which
is the question of advance statements I think I would have preferred
the clarity of putting these into legislation and having it as
part of the scheme of the legislation so the interrelationship
of these elements would have been clear, but I would have hesitated
because there is quite a degree of force in the argument that,
if a subject is developing fairly rapidly and, for example, views
on what is and is not treatment are changing, there is certainly
a very stateable argument that it is better to let the courts
respond and develop principles for a little longer before fixing
the matter in legislation. I am a little ambivalent about it and
I can see the arguments both ways.
Q30 Chairman: We have had an enormous
number of submissions of concern over this aspect of the Bill.
Did you have the same concern in the consultation period and in
the drafting of your Bill?
Mr Ward: Yes. I was principal
spokesperson for an alliance that was campaigning for the Bill.
It was quite a substantial organisation and we had more than 70
organisations in it with over 30 national organisations. We had
great difficulty over these topics and I believe that, in fact,
that difficulty was part of the reason for dropping some of them.
They really almost hijacked the agenda. Those who had strong views
were using our legislation to have an argument about those views
which was not relevant to what appeared in the draft Bill, but
the argument was loud and it did threaten to draw attention away
from the vast bulk of the provision.
Q31 Baroness Barker: Following that
up, is the consequence of that decision that you will, for the
foreseeable future, rely on case law?
Mr Ward: In the matter of advance
statements and in the matter of withdrawal and termination of
Q32 Mr Bercow: We have had more of
an inkling of your thinking on the next subject, I know you will
want to elaborate on it. How adequately, if at all, is the scope
of the general authority defined in the draft Bill or is it too
little circumscribed? How do you recognise it will work in practice
and tacked on to that, and related, how useful is the concept
of reasonable belief in the capacity?
Mr Ward: The idea of a general
authority fills me with dismay. If somebody thinks my capacity
is becoming impaired they can do what they think is best, they
can act. What does it mean "they can act". I cannot
see how that can be compliant with the European Convention on
Human Rights. If somebody is making decisions about me or for
me they are taking away my right, albeit for very good reason,
they are taking away my right to make those decisions myself.
Quite clearly under Article 6 of the European Convention that
should only be done with the authority of a court after a hearing.
Q33 Mr Bercow: The issue of liberty
and consent is extremely important and I do not grapple with that
but just to elaborate, do you think in practicable terms if we
were to ignore Mr Ward's advice and say "he can do what he
likes in Scotland, we think that we have been advised sufficiently
in the draft and we can go ahead as we think fit", there
is going to be a ream of damaging practical cases that will result
and cause us to repent?
Mr Ward: In some of your papers
I saw a figure that the Master of your Court of Protection quoted,
quite a high percentage of cases of powers of attorney where he
believes there was abuse, there was misuse of powers. That is
quite a high percentage in a situation that is already regulated
and known about. I think if one confers that authority to do what
they like on people who are not regulated, not known, not supervised
the risk of misuse of that authority will be grave. One thing
that is clearly lacking from that, even compared with the most
simple procedures, is the most simple protections. We have very
simple procedures in our legislation which requires somebody to
say, "Just a minute, is this person's capacity impaired?
Is it impaired to a degree that they cannot act or decide in the
particular matter that we are addressing therefore do we need
to put in place a procedure?" I suspect that the general
authority will stop people even considering such a point. It will
be used retrospectively as a justification for what has occurred.
Q34 Mr Bercow: And administrative
convenience will end up taking precedence.
Mr Ward: Everybody's convenience.
Of course there will be many, many people who will exercise it
very wisely, very sensibly and very responsibly, but it would
be equally easy to proceed otherwise.
Mr McClements: I was just going
to add to Mr Ward's comment, I think a practical problem could
well be general authority, where an individual engages with a
third party organisation in terms of being able to show clearly
that they actually have the authority that I mentioned in the
opening statement. We have a section, part three, which deals
with financial institutions. I have great concerns as to how financial
institutions would view and recognise somebody who claims to have
general authority and how they would deal with that.
Q35 Baroness McIntosh of Hudnall:
I think it is pretty clear that there are certain aspects and
general authority principles that are open to question. On the
whole what you have said is viewing the position from the standpoint
of the person requiring care, the incapacitated adult. There is
another aspect to it, the protection it affords to the carer,
in other words it frames the carer's action but it may not do
so entirely adequately. Can you explain in what way carers within
the Scottish legal framework are protected in relation to actions
they may have to undertake in certain circumstances there and
then on the day, as it were, which could retrospectively be construed
in a particular way? In what way are they protected within your
Mr Ward: I am going to answer
your question to start with slightly obliquely, to a large extent
the move for reform in Scotland started with carers. We started
by tryingand I mentioned this in our memorandumto
use our common law principles in modern ways, providing procedures
to create formal guardianship. This was driven typically by the
parents of young adults with learning disabilities who were saying,
"we know we are making these decisions, we are ordering our
children's lives, we have no authority, nobody has thought about
what we are doing, nobody is controlling whether what we are doing
is appropriate and because we are doing it that way also when
we are dealing with authorities we are just another adult in the
same house". To a large extent those developments which were
the precursors of our reform came from carers because they were
worried about these aspects. I think there is all the difference
in the world between making representations about the living conditions
or life-style or activities of your young adult learning disabled
son or daughter living in some accommodation under somebody else's
care because you have welfare guardianship powers which authorise
you to make such decisions, and you always have to obey the general
principles, compared to being just a parent trying to have something
done because you do not think the way it is happening is appropriate.
Q36 Lord Rix: Under your Act how
do the actual powers which you give to the parents of learning
and disabled young adults operate, do you have to go to court
to seek them?
Mr Ward: If one is looking for
guardianship powers, yes, you have to apply to the local Sheriff
Court. If we are seeking welfare powers we have to produce a couple
of medical certificates, one of which is required to be from a
consultant psychiatrist, we have to give notice to the local authority,
whose mental health officer also produces a report. These reports
are submitted. The whole process is governed by the general principle,
so one has to justify each power sought on the benefit and intervention
basis and on the other principles. The guardian will then have
some powers tailored to the circumstances and abilities of that
particular adult, even with those powers the guardian must then
continue to apply the principles so they use them in a manner
consistent with the principles.
Q37 Lord Rix: Have there been many
powers granted of this nature as yet?
Mr Ward: David may have some statistics,
I did not bring those.
Mr McClements: The statistics
for the first six months in relation to appointments of welfare
guardians are as follows, there were 72 appointments in the first
six months, from April 2002 to September 2002, with 108 pending
at that stage. There has been continuing development in that,
there have been more cases. It may be interesting in relation
to the statistics that the number of powers of attorneythe
power of attorney is the capability to grant welfare power of
attorneyin the first 18 months of registration were 3,890
continuing powers of attorney, lasting powers of attorney and
an additional 1,439 which had joint powers of welfare and continuing
Mr Ward: And 189 purely welfare.
Q38 Lord Rix: Does ENABLE think that
is sufficient for the time that has elapsed since the passing
of this Act?
Ms White Craigmyle: We probably
think it is. It is important to point out there are of course
those people with learning disabilities who understand a power
of attorney and even understand possibly with some support. In
my legal practice with ENABLE we have assisted 15 individuals
so far with learning disabilities to enter into the granting of
a power of attorney themselves in favour of an individual of their
choosing. Usually more support is needed for people with learning
disabilities but if we are in doubt of course we consult with
the relevant GP or doctor. Given the passage of time, yes, I think
the statistics that David has quoted are reasonable.
Q39 Huw Irranca-Davies: I have listened
with great interest to your comments on general authority and
your strong reservations about it. I was going to ask you in respect
of Clause 7 of the draft legislation we have in front of us whether
you thought the restrictions on the use of general authority were
adequate? I suspect your response is going to be that the fundamental
premise of the general authority is flawed in such a way that
the restrictions themselves are unworkable?
Mr Ward: That would be half my
answer. The other half was one I alluded to earlier. I do not
know what is authorised. It is lawful for any person to do an
act, not to make a decision. You make the distinction between
decisions and acts, what acts are not decisions? Some things are
more clearly acts and some things are more clearly decisions,
acting to safeguard your interests in a more general sense is
acting, it usually comes down in implementation to making decisions.
Not only do I have reservations about the concept altogether,
but I find it difficult to look at the restrictions because I
do not know what it is that is being restricted.