9.Supplementary memorandum from the British
Psychological Society (MIB 1205)
|Ms Karen Ehlert||Honorary secretary, Division of Clinical Psychology, BPS
|Dr Camilla Herbert||Chair, Division of Neuropsychology, BPS
|Professor Glynis Murphy||Fellow, BPS
|Dr Peter Kinderman||Chair, Division of Clinical Psychology, BPS
|Dr Catherine Dooley||BPS
1. The Draft Bill would put into statute a number of principles
already encompassed by common law. It would also establish several
new systems relating to substitute decision-making. In your view,
does the Draft Bill go far enough to clarify and improve the decision-making
process for professionals, families, carers and those who are
unable to make decisions for themselves?
The BPS welcomes the Bill and, in general, welcomes its structures,
clarity of language, and content. We have reservations, detailed
below, but we think it is a positive move forward.
2. In your view, does the Draft Bill place sufficient
emphasis on the need to facilitate the making and communication
of decisions by people with incapacity?
The BPS supports the need to emphasise appropriate and alternative
modes of communication, for example, use of interpreters and technological
aids, so that the views and opinions of the individual with impaired
communication can be made known to professionals, carers and advocates,
irrespective of the communication method. Alternative and assisted
means of communication are not adequately covered in the draft
Bill. However, this can be addressed in two ways. First, by incorporating
a Statement of Principles on the face of the bill (similar to
the Incapacity Act in Scotland 2000) which would directly address
the issue of an autonomous decision being made possible by appropriate
facilitation. Secondly, the BPS supports the recommendation of
the Making Decisions Alliance, that Government Departments develop
a Code of Practice, involving, and incorporating the views of
the relevant professional and other representative bodies. This
recommendation is made in order to ensure that those capable of
making decisions are facilitated in doing so; that the rights
of the incapacitated person are protected; and that proxy decision
makers are aware of their obligations and the scope and limits
of their power.
3. In your view, are the boundaries and overlap between
the Mental Health Act 1983 and the Draft Bill sufficiently clear
and workable? Is this likely to change if the proposals for a
new Mental Health Act are enacted?
The BPS accepts that there will be overlap between the two
statutes but recommends that there is a need for compatibility.
The BPS believes that both Bills should address the issue of people
who are unable to make valid decisions. The emphasis of the Mental
Incapacity Bill is placed on the needs of people who cannot make
decisions for themselves, many of whom do not have mental health
problems and would not see themselves as part of such a framework.
Their needs include the making of decisions about legal, social,
financial, and health care issues. In contrast, the Mental Health
Bill addresses the needs of people whose decisions may be biased
by mental disorder, and is primarily concerned with the decision
to accept treatment for mental disorder. Therefore, the BPS suggests
that Section 27 which addresses specific areas of overlap should
be amended. Clarity is needed concerning:
(a) individuals who do not have a defined mental illness
but where a degree of compulsion or constraint may be required.
This may include individuals who are likely to wander in a confused
state where a secure and protective facility may be helpful; and
(b) individuals who are unable to make valid decisions
for themselves under the definitions of the Mental Incapacity
Act who also have mental health problems as defined by the Mental
Health Act. The BPS welcomes the definition of capacity used in
the Mental Incapacity Bill and recommends that the Draft Mental
Health Act should include a criterion of "impaired judgement".
Finally the BPS questions whether the title of the bill adds
to the potential confusion with the Draft Mental Health Act, and
would support the title "Incapacity Act" (similar to
the Scottish experience) as a useful way forward.
4. The BPS advocates the inclusion of a statement of principles
at the start of the Bill, similar to that included in the Draft
Mental Health Bill. Does the RCP agree?
The oral evidence would suggest that the RCP does support
5. Should the Bill specify how or by whom an assessment
of capacity should be made, in respect of individuals who do not
consent to be assessed? Or should this be left to the Code of
The BPS believes that there should be a hierarchy of statutory
response and a hierarchy of assessment. For many people the General
Powers of the Incapacity Bill could be used to facilitate and
legitimise basic care. All healthcare workers can and do assess
capacity as part of their work, but at present such assessments
are informal and idiosyncratic. This Bill would make this more
systematic and auditable. The BPS believes that more serious decisions
should be preceded by a process of Registration of the patient
with the Public Guardian. We recommend that this should be attested
to by a Registered Practitioner and that this requirement should
be included in the Bill. Such registration should be accompanied
by an appropriate assessment by an appropriate professional. In
some cases this will include psychologists or other health care
professionals such as speech and language therapists. However
the level and type of assessment required will vary according
to the complexity of the decision being taken, and this would
be best described within the Code of Practice. The Draft Bill
unnecessarily excludes relevant health care practitioners from
providing an opinion at this level due to the use of the term
6. Where should the limits of the General Authority be
drawn in relation to medical treatment?
The BPS believes that most care would be conducted under
General Authority, but that if there was dispute or a serious
intervention was being considered, then Registration would be
necessary to ensure that an appropriate assessment of capacity
had been carried out.
7. The BPS propose that in certain circumstances, use
of the General Authority should be controlled by a system requiring
formal registration of the incapacitated individual with the Public
Guardian. As far as clinicians are concerned, what advantages
would a formal registration system have over the current proposals
for the General Authority?
A formal system of Registration would provide a safeguard
for patients and clinicians by ensuring that important decisions
are open to scrutiny. For the clinician such a system would offer
protection from claims of clinical negligence and inappropriate
behaviour. In addition, it provides a mechanism for recording
evidence along with the rationale for proxy decision-making. Under
the existing proposals for General Authority there is no system
for monitoring or auditing proxy decision making. The BPS believes
that most registrations would by uncontroversial, for example,
the enacting of a lasting power of attorney for an adult with
dementia, and would not incur substantial costs. However, closer
scrutiny will need to be provided for people with acquired brain
injury and learning disabilities. Therefore, a Code of Practice
should provide guidance as to when a straightforward registration
is insufficient and also provide recommendations regarding further
assessments, and by whom these should be undertaken. The BPS does
not see Registration as necessarily restrictive of the individual's
ability to make decisions in areas not covered by registration.
8. Do you consider that the admission of an assenting
incapacitated person to hospital by a doctor acting under the
General Authority resolves the "Bournewood gap" and
provides sufficient protection for both the doctor and the patient?
The BPS believes that the Mental Incapacity Bill will address
the Bournewood Gap.
9. Should Local Authorities be given duties to investigate
possible abuse taking place under the general authority? Would
this alternative approach help address any concerns you might
have about the exploitation of vulnerable people?
The BPS believes that, whilst it is not inappropriate for
the Local Authority to have investigatory powers (as they do already),
the proper oversight body for the Mental Incapacity Act would
be the Mental Health Act Commission or its successor body. However,
in keeping with a hierarchy of decision-making authority, the
BPS concurs that disputes are addressed quickly. Therefore, informal
dispute resolution services should be set up. Public Services
in general should have a legal duty to investigate incidences
of actual or potential abuse, neglect and exploitation. This recommendation
is in keeping with the Decision Making Alliance.
10. Should the Bill stipulate that advance decisions be
made in writing? If so, would it be desirable and practicable
to include a provision that they should be witnessed by a competent
professional such as a doctor or lawyer?
The BPS's view is that whilst an adult retains capacity and
is able to make their views known the issue of written or oral
statements does not arise. The Mental Incapacity Bill has to address
the issue of whether such statements should be respected once
the capacity to revoke them or to change them is lost. The validity
of advance directives are already addressed in Common Law. However,
the BPS recognises that individuals do change their minds and
would support the statement under clause 24(4c) which recognises
"unforeseen circumstances" that might have influenced
one if one had known of them, such as advances in medical treatment,
associated with an improvement in quality of life, not anticipated
at the time of the advance statement.
The advantages of a written statement or a statement evidenced
in writing is that it provides evidence as to a persons values
and wishes, it also acknowledges the importance of self determination
with regard to cessation of treatment. A formal process of registration
will ensure the greater likelihood of the information being available
when required, and would also demonstrate that the individual
had had an opportunity to consider the issue in some depth. It
is the BPS's view therefore that written statements, or statements
evidenced in writing are important.
The acknowledgement of advance decision-making in the Bill
will provide greater clarity in the provision of health care,
for those who become incapacitated, but who have made their wishes
known in advance. It will also assist in providing protection
for professionals and follow advance decision-making documents.
However, advance decision making needs to be backed up by a Code
of Practice that covers issues such as the drafting and implementation
of advance directives.
The BPS is concerned that additional costs and delay should
not influence the equity of provision of advance statements. It
is acknowledged that individuals who are competent to make advance
decisions may not wish to engage a doctor or lawyer in the process
of witnessing the written statement, although they may wish to
obtain relevant information from them. Given that the document
reflects personal wishes, consideration should be given to the
document being witnessed by two people who will not benefit from
the death of the individual drawing up the document. This can
be addressed in a Code of Practice.
11. Should the Draft Bill specify a duty on doctors and
other professionals to ensure that an advance decision is not
leading to unintended harm, and include a mechanism whereby unintentionally
harmful decisions could be set aside?
This is addressed under clause 24(4c) and can be further
clarified through a Code of Practice.
12. Should the Bill exclude "basic care" from
its procedures and mechanisms? If so how should "basic care"
The BPS strongly supports the inclusion of basic care as
part of General Authority. The BPS further believes that, whilst
this should cover most actions, there will be actions over and
above basic care which should be covered by a process of Registration.
We do not have specific advice on definitions of "basic care".
13. In your view, are there sufficient safeguards in the
Draft Bill against donees of lasting powers of attorney failing
to carry out their responsibilities properly?
The BPS believes that the Bill should include specific provisions
to ensure that recipients of donee powers are placed under an
obligation to fulfil these duties properly and that a mechanism
for monitoring donees is established, in order to ensure that
individuals who are no longer competent to make decisions, are
protected from exploitation, abuse and neglect.
14. Is it necessary for the Draft Bill to contain provisions
regarding the involvement of incapacitated adults in research?
Yes, see below.
15. How might you balance the need for research to arrive
at treatments for such disorders as Alzheimer's disease against
the risk of exploitation and abuse?
The BPS believes that such balance is the province of Local
Research Ethics Committees and values their work, see below.
16. To what extent do you consider that the present role
of ethics committees are a sufficient protection for incapacitated
or potentially incapacitated people from research that might be
inappropriate and/or exploitative?
The BPS supports the existing role played by ethics committees,
but feels that decision-making will be enhanced by greater clarity
provided by the Mental Incapacity Billsee below. Furthermore,
it is important that there is consistency in the standards adhered
to by the various ethics committees.
17. Is there a need for a formal "substitute decision-making"
procedure whenever an incapacitated person is to be involved in
The BPS believes that the Mental Incapacity Bill should include
specific provision for research. We believe that this should address
specifically the role of Local Research Ethics Committees (LRECs).
We believe that LRECs should be given a formal legislative framework
for their rulings in this area. There will be occasions where
the research would involve interviewing a relative or carer and
would not present unnecessary risk or exploitation of the individual
concerned. However we believe that the Mental Incapacity Bill
should specifically require LRECs to insist that individual proxy
consent be obtained for research participation by incapacitated
18. Would the witnesses like to draw the Committee's attention
to any aspects of similar legislation in other jurisdictions which
they feel are instructive to consideration of the Draft Bill?
This is outside the area of our expertise.
19. Written evidence received by the Committee states
that there will be a need for a "huge investment in training"
and "a substantial research programme" to support the
implementation of the Bill. Roughly what sort of sums of money
do you think would be involved in England and Wales?
The reference to "huge" investment of financial
resources originated in the submission by the Scottish BPS. We
apologise for any misinterpretation by the Committee, but we do
believe that the provisions of the Bill will need to be properly
resourced in order for the proposed legislation to actually provide
the improvements that it promises and which we support.
We believe that the resources will be needed in three areas:
staffing, training, and supporting/evaluating the implementation.
Staffing: We do not anticipate "huge" extra
demands on staffing as a result of the Bill if it is clearly drafted
and the Code of Practice is readily available. The Bill will codify
existing good practice which already includes the demand for specialist
assessments by psychologists. The BPS strongly supports the statutory
recognition of assessments by psychologists, and we do anticipate
that there will be an increase in the demand for our services
within the health and social care fields. Planning for this, however,
can be considered as part of the ongoing workforce planning discussions
with the Department of Health.
Training: All registered practitioners will require
a basic level of training in order to implement the proposals
under the new legislation. This would necessarily include a range
of medical practitioners such as GPs, psychiatrists and physicians,
but might also include lawyers, psychologists or other health
care professionals. More detailed specialist training would be
required for professionals to be registered to provide specialist
assessments. Although there would be a need for training in the
legislation itself, many of the clinical skills required by clinical
psychologists and neuropsychologists will be met through their
doctoral and post doctoral qualifications and continuing professional
development and would not be an additional cost. The target population
for training of specialist psychologists would be in the order
of several thousand initially, with a smaller number of new practitioners
being added over subsequent years. Typical training costs range
between £30 for a short didactic session to £500 for
a longer workshop event.
Evaluation: The BPS strongly recommends that the workings
of the Act be subjected to careful evaluation and research. Information
will be needed as to how many people are meeting the criteria
for Registration and for what types of decision, how often General
and more Specific powers are being used, complaints etc. These
evaluation and research procedures will have costs attached.
Finally, the BPS believes that the implementation of the
Bill will need a secretariat to support it. There will need to
be a register of approved professionals, and a system to log and
manage the registration of patients, request specialist assessments
and scrutinise the workings of the Act. There will be significant
costs if the Bill is enacted properly, but the BPS believes that
this is an important piece of legislation that will have a positive
impact on those who have capacity to make decisions but have difficulty
in communicating them, people who do not have the capacity to
make decisions, their relatives, carers and professionals involved.