Examination of Witnesses (Questions 320-340)|
8 OCTOBER 2003
Q320 Mrs Humble: Is it satisfactory
to have it done in that fairly vague way, of somebody reaching
judgment through conversations with their patients, or should
there be specific steps laid down, if not on the face of the Bill
then in a code of practice, that you ought to be ticking off?
If the individual is not co-operating, how can they go through
that check list?
Dr Kinderman: I am sorry if you
misunderstood. Yes, there should certainly be very clear guidelines
about how it should happen and that should be regulated on the
face of the Bill. There are two obvious things to say. The first
is about the registration of people as competent authorities in
this matter. One of the things the British Psychological Society
would welcome would be some brief mention of approving certain
people as registered practitioners, in the same way as is done
under the Mental Health Act, when people are Section 12-approved
because they have a specific competence in that area. That is
one thing, are you or are you not capable of making these sort
of assessments? The other thing is having guidelines laid down
in a code of practice, which is referred to in the Bill, but which
is flexible and hierarchical. We would certainly welcome strong
guidelines but it is a hierarchical thing. You do not behave and
then assess capacity and behaviour differently, you are always
assessing capacity and always using clinical judgments to decide
Professor Murphy: I would like
to endorse that and say that for many situations assessing capacity
is not that difficult and with a set of guided questions a general
practitioner could certainly do it without any difficulty and
a lawyer could certainly do it without any difficulty in lots
of cases. We are only proposing it should go to a psychologist
with expertise in that area where it is a very complicated decision
and where you might need more advanced knowledge.
Q321 Mrs Humble: So you would expect
different professionals to be making decisions on the particular
issue on which the competence is being assessed? So, for example,
a lawyer could make a decision if you are talking about somebody's
competence to make a financial decision. They may be competent
to make certain decisions but not necessarily the particular decision
that has arisen, so are you saying it would only be in very complex
cases it would go to somebody who would be registered on your
list? Who would decide that that individual is a complex case
and it should go that step further?
Professor Murphy: To answer the
first part of your question, yes, that is what we are saying.
I think it would be very easy to set out a framework that lawyers
could use and GPs could use although it would have training requirements.
Dr Dooley: In some respects something
similar is happening at the moment because if you take an elderly
person in a medical setting in an in-patient ward who is behaving
irrationally and perhaps not consenting to treatment, the first
question would be, why is that happening? They might call in a
psychiatrist to do an assessment about their capacity, that psychiatrist
might then call in a speech and language therapist if that person
has a communications difficulty, they might call in a clinical
psychologist if they had reasonable memory difficulties. So in
a way this is a mirror of that. It is a cyclical system. As we
develop our specialist assessment we can then feed back to the
more generic services the different aspects which allow us to
assess it and that will inform their practice.
Dr Zigmond: Can I take it further
in two respects? I agree with everything that has been said. If
one looks at the current Mental Health Act, Section 57, that clearly
gives to non-medical people who are members of the Mental Health
Act Commission from any discipline, including lay people, the
duty to assess whether in certain circumstances patients have
capacity and are consenting in relation to surgery for a mental
disorder. I do not think we should go down the route of saying
that any particular group of people do not have skills in that
area because with further training and within a regulatory framework
we could include a wide variety of people. The second thing is,
these are supposed to be situation-specific decisions relating
to capacity. Let me give you an example. Suppose I was asked as
a psychiatrist to assess if somebody was capable of making a decision
as to whether they should have a hemi-colectomy, I would not have
a clue. I do not know what is involved, how could I assess what
the patient understood about what was necessary, about the pros
and cons, about the adverse effects, the benefits and so on. So
it would have to be, in those circumstances, a surgeon who knew
what he was going to do, or she was going to do, who knew the
sorts of information which the patient would require to make a
decision and then be able to assess whether or not the patient
was able to understand. It may be the patient could not do that
by himself or herself and it would require two people or more.
So the notion that somehow you can have an individual or a class
of individual who can assess capacity I think is wrong. It is
much more specific, just as whether the patient has a lapsed capacity
is specific, so the people who would be involved in making that
assessment at that time for that individual relating to that issue
would have to be specific.
Q322 Mrs Humble: Accepting all of
that, how does that lead into your earlier statement about having
a registered group to deal with the more difficult cases?
Dr Kinderman: That was exactly
what I was going to say. Here is an example, if my colleague over
there were to arrest me and charge me with an offence, he would
ask me if I understood the charges he was putting to me, and he
would be making some sort of judgment within the bounds of his
competence about my capacity. You would expect him to do that
and that would be okay. If he had some doubts, he could call Tony
to assess my capacity. What we are saying for the purposes of
this registration, what you should do as health care professionals
is work within the bounds of your competence, judge patients'
capacity, if you think they are incapacitated about a particular
issue then you would operate under general authority. If you thought
they were incapacitated and the issue was of a nature to warrant
registration, there should be some people who are listed with
the Court of Public Protection, or whatever it is, who have specific
competence to rule on the more difficult issues. In the same way
that the police officer can work out whether I appear to understand
what he is charging me with, if I do not appear to understand,
they should call in the police liaison doctor to assess me properly
because that is the person capable of doing it. He assesses capacity,
if he cannot, he calls on a colleague who does it in a more sophisticated
Mrs Humble: That is very helpful.
Q323 Chairman: It would be interesting
to watch the process of a psychiatrist assessing a psychologist!
Dr Zigmond: There are limits!
Q324 Lord Rix: I come back to advance
decisions. Should the Bill stipulate that advance decisions to
refuse treatment should be made in writing after full consultation
with the family? Would you consider it desirable for such decisions
to be witnessed by a competent professional known to you, such
as your GP or your lawyer, if you have one? If I can add a second
part to that question which I was unable to ask your predecessors
here, the BMA, if you have advance refusals already down and witnessed
and fully documented, does this lessen your statements of wishes
about, say, where you are going to be living in your extreme old
age or the sort of health care which you will receive? Does the
advance decision to refuse treatment always take precedence over
an advance statement of wishes?
Dr Ehlert: It is a very complex
question but I will try to answer it in parts. First of all, I
think it is about looking at evidence, and certainly if you have
not got something in writing how do you actually prove evidence
that advance decision making has been made. I would say, yes,
evidence in writing needs to be made or, for example, if the person
cannot write things down to have some sort of evidence in writing.
Should it be witnessed by a doctor or lawyer, the issue is that
some people may not want to go to a doctor or a lawyer and therefore
perhaps one should consider having two witnesses who were not
Q325 Lord Rix: Indeed.
Dr Ehlert: The other issue is
that perhaps one should also consider that if one were to incorporate
having two witnesses who were not professionals, then you would
have to look at ensuring these people would not be benefiting
by the person's death.
Q326 Lord Rix: Of course.
Dr Ehlert: The other issue is
of course cost. As soon as you start getting professionals involved
there is a high cost. The other issue is that perhaps one should
consider within a code of practice having a model living will
or advance decision directive in order to set standards. Of course
one could thereby take into account advances in medical treatment,
actually ensuring that the person is able to renege on their original
decision if necessary depending on the issue at stake in defining
Q327 Lord Rix: What about advance
statements of wishes? Are they lessened by the advance decision
Dr Zigmond: Could I come back
to that? Could I first of all add that one of the interesting
issues here is that Clause 24 is very detailed and the circumstances
in which advance statements will not apply are very complex. We
do not think it should have to go to a professional, it is expensive
and why should you, but of course it is a bit like a will, the
risks of getting it wrong and therefore your wishes not being
followed are greater perhaps if you have not taken advice. I think
that is as far as one could go. On the second point, clearly if
there is any statement that is currently made by a capacitous
individual, it should override a previous statement by the capacitous
individual. So while they are able to make it, then I think it
is very important. If I could give an example, it might illustrate
some thoughts on this. I was at one of the conferences recently
and a remarkable gentleman with Alzheimer's Disease was talking
about this and said he had all his life hated to have a bath.
He assured us he was very clean but he liked to shower and he
wanted his wife to be able to convey that at such time as he was
no longer able to. It occurred to me that at that stage it may
be he would prefer a bath, he does not know what he would want
then. I suspect he would have to be really quite severely damaged
before he was unable to make that decision at that time, and the
thought of him trying to climb in a bath and someone pulling him
out saying, "No, your wife says you are not to have a bath",
seems a little harsh. So I think the issue is one of constantly
deciding for this issue, the seriousness of this issue, is that
person still able to make a decision and, if they are, then that
is what must count.
Q328 Lord Rix: I have drafted something
fairly recently based on a living will, which seemed to be fairly
wide in its implications but actually quite specific. It refers
to "life-threatening physical illnesses from which there
is no reasonable expectation of my recovery or of severe and permanent
impairment of all my intellectual faculties together with a physical
need for life-saving treatment" and it then goes on to say
what you want to do. I would have thought that was not being unreasonable.
You are not saying to somebody, "Kill me, please, automatically",
you are saying, "When those conditions are reached I request
all treatment necessary to maintain comfort and dignity and relieve
pain even if this is likely to shorten my life . . ." and
obviously I am thinking of morphine, ". . . and to refuse
treatment aimed at prolonging or artificially sustaining my life."
Would you not think that was reasonable?
Dr Zigmond: I think it is excellent.
In order to be slightly devil's advocate though, supposing you
have a condition which is a terminal condition and something happens
which causes you pain and the only way I can treat that is not
by shortening your life but by extending it.
Q329 Lord Rix: Like putting me on
Dr Zigmond: In order to deal with
the pain, not in order to extend your life. Would your wording
Q330 Lord Rix: Yes, I think it would.
Dr Zigmond: I merely give that
example to show just how difficult it is to be precise.
Q331 Lord Rix: Indeed.
Dr Zigmond: The principle, absolutely.
Chairman: As we have not got the wording
in front of us, we should perhaps move on.
Q332 Mrs Browning: For those people
who have a known condition which results in fluctuating capacity
throughout their life, would you as professionals feel that during
those times when they clearly have capacity you would feel it
incumbent upon you to encourage them to take those advance decisions?
Would you be pro-active in doing that?
Dr Zigmond: Yes.
Dr Kinderman: Yes.
Dr Dooley: Yes.
Dr Ehlert: One of the pointers
in relation to the evidence is about registration. At the moment
it would be quite difficult to actually find out whether anybody
has made a living will or advance directive in relation to their
health care, so therefore one should consider some sort of registration
process which is accessible in order to find out whether those
decisions have been made.
Q333 Baroness Knight of Collingtree:
Really this is crossing Ts and dotting Is and following on something
which Dr Zigmond and Dr Kinderman said. Do you think it would
be good if the draft Bill actually put a specific duty on doctors
and other professionals to ensure that an advance decision to refuse
treatment is not leading to unintended harm and some kind
of mechanism whereby unintentionally harmful decisions could be
avoided or set aside?
Dr Herbert: That is covered by
Clause 24, is it not?
Dr Kinderman: We had a discussion
about this when we saw the question and we came to the conclusion
that that is covered by the issue of what constitutes the invalid
decision, Clause 24. I have not got it in front of me but it says
something along the lines that if that decision was made on advice
but there was something which was not foreseen by the person,
and if it is unintended it was not foreseen. We thought it was
probably covered by Clause 24.
Dr Zigmond: Could I add, please
do not ever put on me a requirement to ensure anything. You can
ask me to try and ensure, or do my best to ensure, but how I can
ever ensure for certain anything, I do not know.
Q334 Baroness Knight of Collingtree:
I was not so much asking you to ensureand how I would ever
ask a psychologist to ensure anything, I do not knowI was
merely hoping possibly the Bill might be able to.
Dr Kinderman: Just to clarify,
Clause 24 refers to circumstances which were not anticipated,
and if you are talking about "unintended" that would
seem to cover that.
Q335 Baroness Fookes: Basic care:
do you believe that the Bill should exclude basic care from its
procedures and its mechanisms or not?
Dr Herbert: No, the strength of
the Bill is that it does include them under general authority
because those are the sort of things which we are saying are left
Baroness Fookes: So you are all agreed.
Q336 Baroness McIntosh of Hudnall:
This is about the duties of people in possession of lasting power
of attorney. Is it your view that there are sufficient safeguards
in this Bill to ensure people carried out their responsibilities
effectively? Specifically, do you think that the Bill will be
improved by the list of, as it were, specific provisions of duty
of care being placed on people who have lasting power of attorney
and a list appended of what that implies?
Dr Kinderman: In the absence of
anybody else saying yes, the answer is yes.
Q337 Baroness McIntosh of Hudnall:
Dr Kinderman: One of the benefits
of strengthening itand this includes cost because there
is a secretariat involvedand having these things, including
registration of patients as being incapacitated with the public
guardian, is you have staff to do research on that and they can
look to see how many of them are there, what they have written,
how many would be invalid if you were to look at them as a lawyer,
and you can only start to do that if you move down that path.
Q338 Baroness McIntosh of Hudnall:
Can I reframe the question because I want to make sure I have
understood your answer and that indeed you understood my question.
It has been put to us that the Bill is deficient in that it does
not specifically impose a duty of care on those who have lasting
power of attorney granted to them. Do you think the Bill would
be improved by that duty of care being made explicit and binding?
Dr Ehlert: Basically some sort
of mechanism to ensure further safeguards potentially needs to
be incorporated in a code of practice. For example, actually ensuring
that anyone with lasting power of attorney is looking after the
welfare of the person concerned like in terms of financial aspects.
For example, one could look at having some sort of audit on an
annual basis of the accounts, otherwise anyone could end up doing
anything. On the other hand, there are at the moment quite significant
restrictions in relation to power of attorney where the person
has to go to court to give out gifts and things like that which
the person might have normally done anyway, so therefore one could
look to see whether the person has got, for example, a will which
could be drawn on in order to look at issues of disputing gifts
and things like that. I do not know if that makes any sense.
Dr Zigmond: Could I give an example
of a difficulty? You have an elderly person who is suffering from
a degree of dementia, which is sufficient to lose capacity in
relation to where he or she should live. They are in hospital
and the time has come for discharge. They have spent their whole
life talking aboutand they have not made an advance statementthe
importance to them of staying in their home with all necessary
support but the problem is they do fall over. One of the children,
who is extremely caring and extremely fond of them, says, "They
would be safer in a nursing home, so we want this person in a
nursing home." You know the patient actually wanted to go
home and you think as the doctor with the necessary support they
could be maintained there. That is not an uncommon scenario and
it is a very difficult one. They have given the authority to their
child, quite rightly, that is what they wanted to do, and I think
that anything that reminds the person with lasting power of attorney
of the fact they have duties to consider that list, including
the discernible wishes of the patient, would be very helpful.
I do not know if that answers your question.
Q339 Mrs Browning: Could I add another
twist to that which is familiar to many of us, and that is the
elderly person who in their 60s and early 70s says, "If anything
happens to me, don't worry about putting me in a home", but
when they get to their 80s and they are falling over, they say,
"No, no, no, I'm not going in there!" That is also a
very difficult situation and yet they have expressly, when they
certainly had capacity, expressed a different view.
Dr Zigmond: Yes.
Dr Herbert: There is a need for
us all to change our minds sometimes.
Q340 Chairman: But they have the
capacity at that time to say no.
Dr Herbert: I think we have to
be quite clear that lasting power of attorney does not have to
give you total rights over that individual, it might give you
rights to make decisions in certain areas and that might be one
of the safeguards you ought to have.
Chairman: I think we have reached the
point now where we have been going for 2 ½ hours but there
are two areas we have not reached, and those are lessons from
other jurisdictions, excluding Scotland which we have spoken about.
If you have any views on that, do write to us, and also if you
would write to us about resources. Can I thank you all for an
extremely helpful session. If there are any other points you wish
to make about things which should have been asked or things you
would like to expand on, we would be glad to receive them. Thank
you very much indeed.