Examination of Witnesses (Questions 600-619)|
15 OCTOBER 2003
Q600 Stephen Hesford: Well, can I
disagree with Baroness McIntosh because I think it is more fundamental
than that. It is a very well-worn phrase in law, the reasonableness
test, and the reasonableness test is objective. It is not subjective,
it is objective. Your guy with the Ferrari would not get away
with just an honest belief if it was not based on a reasonable
description of the relationship that he had with his mother, so
it is otiose. What you are arguing seems to me completely otiose,
not necessary, because it is a well-worn phrase which is used
in legislation up and down the country and has been used for a
long, long time. What else is a reasonableness test other than
Mr Clements: This Act does not
say that it has got to be reasonable. It says that the person
must honestly believe that it is reasonable.
Q601 Baroness McIntosh of Hudnall:
Mr Clements: They believe it is
reasonable. They are sincere.
Stephen Hesford: Where are we?
Huw Irranca-Davies: It is 6(1)(a).
Q602 Stephen Hesford: There is nothing
about his belief.
Mr Clements: The person reasonably
believes what he does
Stephen Hesford: It is not about an honest,
mistaken or crazy belief, but it is reasonable belief.
Baroness Fookes: Which would then be
tested in a court. Who decides what is reasonable?
Stephen Hesford: But it is often tested
Baroness Fookes: Precisely.
Q603 Stephen Hesford: But this is
an objective test; it is not a subjective test.
Mr Raymond: If you are looking
at the provisions of 4(4) which refers to "reasonably believes",
it is the person making the decision who "reasonably believes
that what he does or decides is in the best interests of the person
concerned". Earlier in the clause there is a conflict with
that, belief, because you have got, "the act must be done
or the decision made in the person's best interests", the
patient's best interests. In subclause (1) it is saying that the
act must be done in the person's best interests, that is the patient,
and in clause 4 there is a let-out because you are saying that
the person making the decision reasonably believes that what he
or she did was in the person's, the patient's best interests.
So there is a conflict there in the wording, and I think you need
to be looking at that and saying which rules. I think what we
are saying is that 4(1) should prevail rather than 4(4).
Baroness Barker: We have had one group
of people in our deliberations who have attacked the word "reasonably"
and a second group of people who have attacked the word "belief",
so there is clearly a problem here. I have been thinking ever
since they did that that what is not in clause 4 is any mention
of the evidence as to why somebody believes something and reasonably
believes something. I wonder whether, in your experience, a requirement
to produce evidence to back up people would help.
Stephen Hesford: But that is what happens
now. That is the whole point.
Baroness Barker: I am sure it does and
I am sure it does in the courts, but the people who were raising
these things were not lawyers. I am quite happy to take what you
say as being a legal test, but it is not something that other
users of this legislation appear to understand because we have
had big representations on it, so I am trying to find a way
Stephen Hesford: But is that because
they lack capacity?
Chairman: It is the famous test of the
man on the Clapham omnibus.
Stephen Hesford: Yes, exactly and he
Chairman: Exactly. I think probably we
have had enough discussion on "reasonably" and we can
now move on.
Q604 Huw Irranca-Davies: I would
like to tie a couple of questions together because they do lead
on and, to let you know where I am heading, this is to do with
human rights as they affect people who lack capacity where a judgment
is made and also Article 2 of the Convention on Human Rights.
Perhaps I can start by asking a broad question. In your opinion,
is this draft Bill compatible with the Human Rights Act 1998 and
if not, what is going to be used?
Mr Clements: We have concerns
over clause 7 and I think that those are accepted by the Government
probably, that under clause 7 it effectively seeks to codify the
common law of necessity. That I can, if it is necessary, detain
you: but it says under the general authority that it does not
authorise a person to restrict the liberty or movement whether
or not he resists, under section 7(1), "unless the person
reasonably believes that it is necessary to do so to avert a substantial
risk of significant harm". There is no requirement there
that there be immediate power and it is also again a reasonable
belief. We do not allow police officers to reasonably lock people
up if they reasonably believe it is necessary and it has got to
be objective, so we could perhaps return to this argument where
I think we both stated our views and we agreed to differ. So we
have reservations about that and there are two reservations in
relation to that clause. If it is a public authority that is doing
that, then Article 5 of the Convention says that there must be
"a procedure" by which this happens and there is no
procedure prescribed here and that is the Bournewood gap problem.
The other problem is what happens if it is an individual doing
that because if it is an individual doing that, it may not be
detention within the meaning of Article 5 because that has to
be state detention, but it would be degrading treatment under
Article 3 to lock somebody up. The court has repeatedly said that
where somebody is exposed to risk of degrading treatment, Article
3, read with Article 1 of the Convention, requires there to be
laws to deal with thatand there are no abuse provisions
in this Act. Therefore, it seems to the Law Society that the absence
of abuse provisions here are a problem. As we have heard, the
Court of Appeal is trying to do its best, as they said in Re
F, that since Parliament has not enacted any legislation,
they will speak where Parliament has been silent and that is an
unhappy situation where the courts are legislating to fill a gap,
so we have reservations about that in particular. In our submission,
we have pointed to a problem with appointeeships which I think
is a clear violation of Article 6(1) in that the person who is
the subject of an appointeeship, a social security order, has
no recourse to an independent tribunal, which is probably a civil
matter within the meaning of Article 6. We have also significant
reservations about the issue of access to court. Under Article
6 of the European Convention people should have access to courtit
is within the concept of a fair hearingand of course people
with mental incapacity have huge barriers, social and legal barriers,
to accessing court. One of them is the fact that there is no legal
aid available in the current Court of Protection and in the case
of Airey v Ireland, it suggested that that would probably be a
violation of Article 6 again, so I think that those are the major
concerns we have, substantive ones, regarding that.
Q605 Mrs Browning: Following on from
that, last year the Government produced a draft Mental Health
Bill which went out to consultation, but was not then presented
in the Queen's Speech and there was some consideration that if
the Incapacity Bill came forward first before a new Mental Health
Bill, it would obviate the need for a new Mental Health Bill.
One of the most contentious issues in that draft Mental Health
Bill was about matters that surrounded things like the definition
of "personality disorder" and new powers that might
be given to detain people often for an indefinite period based
not on any harm they had done anybody or themselves, but on a
perceived situation, say, by a psychiatrist. Now, I did quite
a lot of work on that at the time because I thought it was a Bill
that was going to come forward. I was very concerned at the lack
of definition of "personality disorder", it appears
to be a spectrum, and I was very concerned about that part of
the Bill for that reason. Is there anything in this Bill, including
clause 7 which you have mentioned, which would allow that situation
to progress in this Bill in the way that it was perceived and
written in the draft Mental Health Bill which we saw last year?
Mr Clements: I am not primarily
a mental health expert, but we are fairly comfortable with the
definition of "incapacity" in this Act because it is
a functional definition rather than an organic definition, so
I do not think that the problems as we perceived in the draft
Mental Health Bill, of which the Law Society has been extremely
critical, exist in this definition.
Q606 Huw Irranca-Davies: Could I
put a proposal to you which you may want to take up. You went
through quite a range there of areas of concern with human rights
compatibility and you have rightly highlighted those in your written
submission. I am just wondering whether you would want the opportunity
to come back with a further written submission expanding in some
detail on what you consider. I know I am throwing this ball straight
at you, but you certainly went through it in some more detail
than you have put in your written submission.
Mr Clements: I think the answer
to that must be that we would be delighted!
Q607 Huw Irranca-Davies: Thank you.
If I can lead on from that to the controversial issue of Article
2 of the European Convention on Human Rights, that although the
state has an obligation to protect life, an individual can choose
not to uphold that right, is this your interpretation of Article
Mr Clements: Yes.
Q608 Huw Irranca-Davies: How does
this Bill sit with that?
Ms Chapman: Perhaps I can deal
with that. We were going to come to this with some later questions.
At the Law Society we do not have a policy on this at the moment.
We recognise that there are strongly held views on both sides.
Our view at the moment is that it is vital to get this Incapacity
Bill through Parliament and we think this would be facilitated
by the broadest possible consensus behind the Bill. We realise
this might not be possible if there is an argument or a debate
around the use of advance directives. We would accept, we could
live with the provisions on advance directives being removed from
the Bill. We do not want this issue to damage the chances of us
getting legislation in what we think is a really important area
on the statute book. Having said that, it is the Law Society's
position and if any of my colleagues want to comment on this from
a personal point of view, that would be fine.
Mr Raymond: There is nothing in
statute on this subject and we are anxious to avoid a situation,
as was suggested earlier, that we might be here to feather the
nest of lawyers in the future by prompting a lot of case law.
There are a lot of people in the country who want to make provision
of this kind. It is a very difficult area, it is very emotive
and people hold strong views on both sides, as has been said,
and it is extremely difficult to bring forward a form of words
which manages to produce the answer which one body of opinion
wants without crossing that very thin line of what is and is not
acceptable. It has occurred to us that it might be possible to
have a standard form of words which would be produced in a way
similar to the enduring powers of attorney form which would be
acceptable and would be accepted by all sides, but whether that
is living in cloud cuckoo land, I do not know, but that would
be an ideal situation where we could have a standard form of words.
I do not know if we could reach that, but that certainly would
satisfy one body of opinion.
Q609 Lord Rix: I personally believe
that an advance directive or a living will is possible to write
which is sufficiently liberal to allow the medical profession
and your relatives, considerable latitude when it comes to the
last days of your life, I also believe that advance directives
to refuse treatment could be worded in such a way in the Bill
as to make them acceptable to 90% of the public, if not everyone,
and do remember that advance directives are voluntary. You would
like to see them removed entirely from the Bill, would you?
Mr Raymond: No, that is not what
I am saying.
Ms Chapman: I think as the Law
Society we are not saying that. What we are saying is that we
would not like to see the law flounder on this issue and if they
were removed, we could live with that rather than seeing this
ending up causing the Bill not to proceed.
Mr Raymond: I was expressing a
personal view, that perhaps if advance decisions or advance directives,
whatever you call them, proceed, we would want to have it as non-contentious
as possible because we would not want to see a situation where
every time it had to go to the court to decide because that would
not be a satisfactory solution.
Q610 Lord Rix: I would agree with
that, but would it be possible, and I have given you some very
rough wording just now, to take that away along with submissions
which have been made by, I think, the Terence Higgins Trust and
others and to come back with a response to this Committee with
changes which you would like to see regarding advance directives
on the face of the Bill?
Mr Raymond: I think the difficulty
is, as has been said, that the Law Society would not want to be
making a statement on behalf of the profession about advance directives,
but I think if we put forward personal views, that would be different,
and we are very happy to do that on a personal basis.
Q611 Chairman: Would you agree that
if there was an approach, it would be better dealt with in a code
of practice rather than on the face of the Bill because a legal
challenge could lead to judicial review, whereas a code of practice
could indicate the sorts of things that should be included in
that and it would be safer?
Mr Raymond: I think the difficulty,
Chairman, is that at the moment we have a situation where advance
directives have no statutory authority and people who want to
make such a directive do so in the knowledge or the lack of knowledge
of certainty. They do not have the ability to say whether a particular
doctor would carry out their wishes or not because some doctors
will accept what the patient has said and others will look at
the Hippocratic Oath and say that they have to preserve life at
all costs. It is very difficult at the moment and, therefore,
I think if there was something in the Billthis is a personal
viewthat would make that position clear.
Q612 Baroness Fookes: One could place
the directives on a statutory basis inasmuch as you include them,
but they would not necessarily have to be obligatory. What about
having them in an advisory form?
Mr Raymond: I think that would
be fine. I have no problem with that personally.
Q613 Baroness Knight of Collingtree:
If that is accepted, could we always bear in mind that there is
another side to this? There may well be patients who do wish to
be kept alive and that if one side was to be catered for, then
the other side, a card-carrying person who says, "If I am
unable to speak or am in a coma, I do want to be kept alive",
would that not be a good thing to bear in mind at the same time?
We are not just looking at one side.
Mr Raymond: No, or you could look
at it that people who wanted to have an advance directive would
have to opt in and everybody else would have been deemed to have
Q614 Baroness Knight of Collingtree:
That was not the question I asked.
Mr Raymond: I know!
Baroness Knight of Collingtree: It would
be better if you stuck to what I asked you as opposed to what
you would like me to ask!
Mrs Browning: I am a little concerned
about what Baroness Knight has just said because doctors, one
imagines, I am pretty sure, would do all that they could to preserve
life, that is the Hippocratic Oath, but there does come a point
at which doctors have to use their judgment, for example, as to
whether to give an operation to somebody who quite clearly may
not benefit from that operation, but would be kept alive as a
result of it. I just wonder how difficult that would be, and kept
alive to what extent? We all share the concern about the withdrawal,
say, of food and liquids. I think it goes without saying that
there has been a lot of debate about that aspect, but in terms
of medical intervention, at what cost to the individual, because
there may well be procedures that could be carried out if you
have somebody back to theatre for whom clearly another operation
is not going to work. It might keep them alive for another fortnight,
but when do you actually stop chemotherapy or when does the chemotherapy
itself become part of the problem?
Baroness Knight of Collingtree: But is
it not the case these days that doctors no longer swear the Hippocratic
Oath and it is not part of their training and some of them who
do not accept it do not have to agree to it? I think if we imagine
that all doctors are there with the Hippocratic Oath firmly in
their backpack, we are wrong because they no longer sign up to
Q615 Chairman: Perhaps we should
not debate this between ourselves! There was the example in the
press recently of somebody whom I know very well who is extremely
severely disabled and she was very, very ill with pneumonia in
hospital, the doctors assumed she would not wish to be resuscitated
because her quality of life was so poor, not with the pneumonia
but with her disability. Of course she insisted that she wanted
to be resuscitated and that is an example of what kind of impact
this might have where it is the reversal of an advance refusal
and it is an advance insistence. Is that right?
Mr Clements: There have been a
number of disabled colleagues that I have, who found the Diane
Pretty case was actually very harmful because there was some suggestion
that we look down on people like that as though their life is
not worth living effectively. Who are we to say? I want to reinforce
what my colleague has just said. The Law Society was instrumental
in trying to get the Law Commission to look at this area in 1995.
We are dealing today with a group of people who do not vote, who
do not have any political clout, who have really no legal rights
whatsoever and it is of tremendous credit to Parliament today
that it is actually legislating because there is no huge, overwhelming
demand for this, although it severely affects the lives of countless
thousandsindeedof millions of people. Ever since
this Bill was first drafted by the Law Commission, we have been
plagued effectively by this issue of euthanasia and we are so
desperate to get at least some aspects of this Bill that we would
really forgo this aspect, although individually we have views.
As the Law Society, this has been our constant aim for ten years
and we have come so close and then again we have this debate where
reasonable people on both sides can have views.
Q616 Jim Dowd: On this idea of advance
refusals and now, as the Chairman has said, advance insistence,
I put this proposition to you which is that I believe that the
law should be no more intrusive in people's lives and certainly
no more than the majority of the population thinks it need to
be. If we have two categories, both advance refusals and advance
insistence, will not the bulk of the population who would otherwise
not be affected by this measure have a choice to make? Surely
the position that we are admitting, unless there is strong evidence
to the contrary, is that you would expect to have whatever medical
treatment is possible rendered to you without having to sign a
piece of paper in advance to declare it?
Mr Clements: Yes.
Q617 Baroness McIntosh of Hudnall:
I wanted to ask you whether you thought that the provisions of
the general authority increased the likelihood of the abuse that
you referred to earlier in your evidence as endemic, the abuse
of people with incapacity. I think what you have said since has
indicated that on the whole you do think it is likely to increase
that risk. Would that be a fair assessment?
Mr Baker: It is impossible for
us to say because so much of the evidence which we receive is
anecdotal. The only areas of abuse that we come across are the
ones where there is evidence that is actually brought to the lawyers.
To say that the general authority will increase abuse, we cannot
say for certain.
Q618 Baroness McIntosh of Hudnall:
Well, can I put it to you slightly differently then because I
think this perhaps is an issue that we should draw out a little
bit. You have said in various ways this afternoon that you feel
that the Bill is insufficiently protective of the rights of those
who are being cared for whilst creating a general authority for
those doing the caring. Would it be fair to say that if there
were a balance between the general authority, on the one hand,
and some protocol that increased the protection, on the other,
that, firstly, you would welcome that and, secondly, that it would
at least not increase the risk of abuse insofar as you can assess
Mr Baker: It would be difficult
to see how it would increase the risk if the fraudulent abuse
has already taken place. If there are safeguards in place to effectively
counter that abuse for general authorities, in essence, it has
got to be a good thing because it means that those may be coming
to the actual attention of other people to be able to be dealt
with, whereas at the moment the problem we have is that nobody
has any idea of what abuse is taking place. It is all anecdotal.
The Master of the Court of Protection will say, "We have
no idea how many powers of attorney are even out there".
With regard to the general authority, the problem I do have, however,
is how will we know when somebody is acting under a general authority?
We have no idea and there is no way of collating that information
Mr Clements: I think we do agree
with what you were saying, that if there are these counterbalancing
protections, then we think that the general authority would be
a good thing and would not lead to further abuse and would apply
to six million carers in the UK.
Chairman: Perhaps we can move on to Question
Q619 Jim Dowd: Having spent quite
a time going over "reasonable" and whatever that means,
we come to another equally contentious word which is "appropriate".
Is it appropriate for a non-medically qualified attorney to override
the professional clinical judgment about medical treatment for
the person on whose behalf they exercise that attorney or should
they just be consulted by the clinician?
Mr Raymond: At the risk of giving
what has been classed as a standard lawyer's answer, I would say
sometimes yes. It is possible that the attorney will be sufficiently
close to the patient to know of the patient's wishes rather better
than the health professional. The problem with leaving such matters
entirely with the healthcare professionals is that some of them
do not necessarily look at what the patient wants, but they look
at what they think is best and they do not necessarily take account
of the patient sufficiently. I am trying to keep away from advance
directives and things like that, but we are back, I think, really
to the situation where the patient wants to move from their own
home and I have had a number of cases of this. The doctor then
says, "You've got to go into hospital", and the result
of that is that there is a visit to A&E, all sorts of tests
are done and in one case the patient died ten hours later after
leaving home. Clearly in view of what was put on the death certificate,
the patient was terminally ill and it should have been fairly
clear that that was the case, but instead of taking account of
what the patient wanted, which was to stay in his own home, the
doctor insisted very forcefully in this particular case that the
hospital visit was required and I think that sometimes the attorneys
will have a better idea.