Examination of Witnesses (Questions 672-679)|
21 OCTOBER 2003
Q672 Chairman: Thank you all for
coming. You heard all the housekeeping notices at the beginning
so I will not repeat them. We are not preparing a White Paper
on mental incapacity; we are working on a Draft Bill and that
is why the questions you have seen have been structured around
the structure of the Bill. Would you like to introduce yourselves?
Mr Allen: My name is James Allen.
I am the development director with Care UK. We provide residential
and nursing care for people with mental health problems and disabilities.
Mr Cramp: Simon Cramp. I am a
trustee of MENCAP and a member of New Dimensions. I am also an
Mrs Pearson: I am Mary Pearson.
I am with RESCARE and I am the mother of a 23 year old daughter
with Downs Syndrome.
Dr Brook: I am Maurice Brook.
I have a 51 year old severely mentally handicapped son, mental
age around 3 years. I am a joint honorary vice-chairman of RESCARE.
I am also a receiver in the Court of Protection for a severely
mentally handicapped man who is not a relative.
Mr Sugden: David Sugden, a joint
honorary vice-chairman of RESCARE and I have a handicapped daughter
who is 35 years old and being very well looked after, thank you.
Q673 Baroness Wilkins: What do you
not like about the Draft Bill?
Dr Brook: Very little. We like
the framework it sets. If you push us to say what we do not like,
I suppose we are echoing what was said earlier, but we have a
certain amount of unease about a recognition that those who are
mentally incapacitated from birth, or virtually from birth, have
some needs that are different to the majority of people covered
by the Bill who have long periods of perfectly normal capacity.
That can be dealt with in the codes of practice.
Q674 Baroness Wilkins: That is how
you would like to deal with it?
Mr Cramp: I would like to thank
the Committee for inviting us here today. I welcome the opportunity
to speak as someone who supports the Bill and necessarily supports
decision making and encouraging good communication in advocacy
and human rights. If I were making decisions for somebody who
could not do it for themselves, I would expect to be held to account.
My main point is that we desperately need this Bill and I feel
passionately that it is not an opportunity to be missed. Some
organisations think that if the Bill were to become law it would
take away more decision making powers for people. I feel this
is not the intention of the Bill. There is a possibility in practice
that this might be an outcome for some people but there is the
general authority as a provision. At the moment, the general authority
to act is too wide. Carers can decide almost anything without
having to take formal authority. It is too difficult for someone
who feels that their wishes have not been listened to to challenge
decisions taken by someone else. I do not like the name of the
Bill. It should be changed to "the Mental Capacity Bill"
to reinforce the idea that it gives people the right to make their
own decisions. I do not like the fact that independent advocacy
is not included on the face of the Bill because it is putting
people in jeopardy. Thank you.
Mr Allen: As a provider of residential
nursing, I have four issues. There is the issue about conflict
resolution. There is not enough emphasis in the Bill about the
delays there might be about the resolution of conflict between
various policies. There are concerns about maintaining independence.
That is key to everything we do, providing care for people with
mental needs. We have some issues about how to provide care that
represents the best interests of individuals in a residential
setting, because we have to consider the health and safety implications
of a range of people within our settings. There is also an issue
about advocacy which is not mentioned in the Bill. We feel that
some conflicts can be avoided and resolved through advocacy.
Q675 Baroness Knight of Collingtree:
Some, if not all of you, were here in the previous session and
you will have heard what was said about the general authority
part of the Bill. I would like to ask what you think about this.
Particularly, would you tell us about any problems that you think
might occur because of the general authority? There was clearly
very strong feeling among those who have just given evidence and
they did make some suggestions. All of us would like to hear your
comments on what they had to say and what you feel about this.
Dr Brook: There was some misunderstanding
about the nature of the general authority in the implication that
it would be vested in an individual, whereas our interpretation
of the Bill is that this is dealing with day to day decision making
by any person who is delivering care. There could be many people
involved. It is regularising for their benefit the position which
obtains now in common law. We do not see the general authority
as a danger, providing the person is committed to assessing whether
the individual has the capacity to make a particular decision
before they exercise this general authority. They will then be
answerable afterwards and have to explain what their reasoning
was in reaching that decision. We do not see any problem in the
application of the general authority. We think it should be welcomed,
certainly by paid carers who are sometimes in an anomalous position.
Mrs Pearson: I think it is important
also to realise that we represent the families of people who have
a severe learning disability, life long very often. The people
we heard earlier have, as far as I could see, a lot of capacity.
It is understandable that they could feel threatened by this Bill
but, for the people we represent, I do not think that is the case.
Q676 Baroness Knight of Collingtree:
You seemed to give the impression that once a person was defined
as being incapable of making their decisions that was a permanent
thing. Is that the case or not?
Dr Brook: As the Bill makes plain,
it refers to a particular decision in a particular situation.
For example, someone wanting to go out when it is raining inadequately
clothed. A carer would very properly under the general authority
make sure that they had protective clothing on before they went
out. The individual might appear to be resistant to it.
Q677 Baroness Knight of Collingtree:
That was not quite the point I was making. I just wanted to know
whether you felt that, once a decision that a person was incapable
of making decisions about his own life was agreed, that could
never be gone back on.
Mrs Pearson: There is a reality
about whether people can make a decision.
Q678 Baroness Knight of Collingtree:
I appreciate that we are dealing here with more severe difficulties
and that may be the basis of the comments made earlier.
Dr Brook: There is a range of
incapacity from those who are virtually able only to be fed and
give very little response to anything to those who can indicate
a number of decisions. You do not classify an individual at any
stage in the process, other than by having reference to their
behaviour and their apparent needs. We do not have a legal system
any more like we used to for classifying people ineducable or
not, for example.
Q679 Baroness Knight of Collingtree:
Do you think the suggestions made, for instance, about the possibility
of a person complaining and the difficulty under the law of that
happening are a problem or not?
Dr Brook: I do not think that
is something the Bill is here to address. Most organisations now
have proper complaints procedures. If an individual is having
difficulty in gaining access to the complaints procedure, there
are other ways of dealing with it.
Mr Cramp: I would slightly disagree
with my colleagues about complaints because of access. Not everybody
can reach the papers you have in front of you. There are communication
difficulties. You could have a situation where somebody has not
made suitable provision for complaints. That is the first problem.
If I can come to the question of the general authority, I have
the difficulty that it almost allows you to do anything.
The Committee suspended for a division