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Mental Incapacity

3.31 pm

The Parliamentary Secretary, Lord Chancellor's Department (Mr. Geoffrey Hoon): With permission, Madam Speaker, I should like to repeat a statement on mental incapacity, which has been made in another place--[Interruption.]

Madam Speaker: Order. Let me get people out of the Chamber--it is very noisy. I am sure that hon. Members will move quickly and quietly so that we can hear the statement.

Mr. Hoon: Thank you, Madam Speaker.

In my answer to hon. Friend the Member for Corby (Mr. Hope) on 28 October 1997, Official Report, column 787, I said that it was the Government's intention to issue a consultation paper on the subject of mental incapacity. I am pleased to announce the publication of a Green Paper on that subject today. It concerns the law in England and Wales, and examines a wide range of issues concerning the legal rights of people who are unable to make decisions for themselves, or who cannot communicate their decisions, as the result of disease, disability, or injury.

As it currently stands, the law affords little protection either to mentally incapacitated adults or to those who care for them. The law is confusing and fragmented: many carers in particular are expected to make decisions on behalf of incapacitated adults without a clear idea of what legal authority there is for those decisions. Everyone will know of a friend or relative whose life is affected by the unsatisfactory state of the current law.

Let me provide just three examples: the first is a young man with a learning disability who has reached the age of 18 and wants to be able to make some decisions for himself, such as what clothes to wear, or where to live. A second example might be a young woman, formerly a high-flying executive until a severe car crash caused brain damage, making her incapable of taking all but the simplest decisions about her life, health or welfare. A third example would be an elderly woman who is suffering from dementia. She is in a home and currently there are concerns about how her finances are protected. The present law does not provide sufficient guidance or safeguards for each of the people I have mentioned, or for those who care for them. The Green Paper therefore invites views on the need to create a legal framework for decision making on behalf of people who lack mental capacity. The Government are determined that the law should be developed and modernised.

I must make it clear at the outset that the Green Paper does not seek views on euthanasia. Euthanasia is a deliberate intervention undertaken with the express intention of ending a life, at an individual's own request or for a merciful motive. That is not acceptable to the Government. We fully support the view of the House of Lords Select Committee on Medical Ethics in its report of February 1994 that euthanasia is unacceptable and cannot be sanctioned in any circumstances. Euthanasia is illegal now and will remain illegal, so let us not be side-tracked by that issue.

The current law lacks coherence because it has developed piecemeal. It is unsystematic and full of glaring gaps. It has many areas of uncertainty, and fails to offer

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adequate protection either for mentally incapacitated adults or for the people who look after them. The scale of the problem must not be underestimated. The range of people who are let down by the current law is extensive. They include adults with profound learning disabilities; victims of accidents, such as road traffic accident victims who suffer brain damage; those who lose mental capacity as a result of a stroke; and those who lose mental capacity later in life--for example, those who suffer from dementia.

In preparing the Green Paper, the Government acknowledge two debts. The first is to the Law Commission, whose work in this area culminated in 1995 in the publication of its report entitled, "Mental Incapacity". The Green Paper published today is based closely on the wide-ranging and coherent set of recommendations contained in the Law Commission's final report. The Government's second debt is to the House of Lords Select Committee on Medical Ethics, chaired by Lord Walton, whose report was published in 1994.

I recognise that many of the issues raised in the Green Paper are sensitive and attract strong views. The Green Paper seeks the broadest range of responses before policy can be settled. With the exception of our absolute opposition to euthanasia, the Government have no fixed or final views on any of the questions. We will develop policy only when the consultation process is complete.

The areas covered by the Green Paper include definitions of incapacity and what is meant by the best interests of an incapacitated person. It also considers the need for a more informal framework for those making day-to-day decisions on behalf of an incapacitated person. It looks at the possibilities open to someone who is able to make arrangements for a time when mental capacity may be lost. It examines the law relating to the making of advance statements and proposals for a new form of power of attorney that would cover health care and personal welfare issues, as well as financial issues.

The independent supervision of medical and research procedures is also considered, as is the possibility of increased protection under public law for people with a mental incapacity and any others at risk. Finally, the Green Paper looks at a possible judicial and administrative framework to supervise and regulate all those arrangements.

The first set of issues examined in the Green Paper are the key principles that underpin the Law Commission's recommendations. The first of those is the need to replace the variety of different tests of mental capacity with a single, straightforward statutory definition. The proposed test of capacity would focus in each particular case on the decision that has to be taken and on the ability of the person concerned to understand the nature of the decision required, as well as its implications. That would avoid unnecessary intrusion into an individual's personal affairs, and would allow for as much involvement as possible by him in the decision-making process. It would allow a person to continue to make everyday decisions about, for example, how his finances should be organised or what presents to buy for Christmas, even if that person was deemed incapable of making a decision about whether a particular form of medical treatment was or was not appropriate.

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The second principle is that decisions on behalf of people under an incapacity should be made in their best interests. The decision maker should take account of a number of factors, including the ascertainable past and present wishes of the individual concerned; the views of others whom it is appropriate and practical to consult; and whether the purpose for which the decision is required can be achieved as effectively in a way that is less restrictive of the individual's freedom of action. Decisions taken on behalf of a person lacking capacity would therefore require a consideration of that person as an individual.

The Green Paper seeks views on the practical application of those criteria. For example, there may be differences of opinion between those who are to be consulted and conflicts of interest may arise. For example, two close relatives may differ about where a person should be looked after--a spouse might wish to continue to care for the patient at home, while a son or daughter might favour nursing home care.

The Law Commission also proposed that a legal framework be established to govern the many informal day-to-day decisions that are made by carers, family members or treatment providers on behalf of those under a mental incapacity. That legal framework would include a general authority for decisions to be taken on behalf of an incapacitated adult, provided those decisions are reasonable and in the person's best interests. The Government accept those proposals in principle, but remain concerned that any such system should have adequate safeguards built in to ensure that incapacitated people and their assets are protected against abuse. The Green Paper therefore seeks views on the additional safeguards that might be needed.

One area of the Law Commission report that has raised particular concern in some quarters is that involving health care decisions intended to have effect when a person loses mental capacity. Those decisions are commonly known as living wills, but a more accurate term--advance statement--is used by the Law Commission and in the Green Paper.

There is a misconception that the Law Commission's proposals would make legal provision for advance statements for the first time. That is not the case. Valid advance refusals already have full effect at common law. This means that a person who is worried about the possibility of a particular form of medical treatment already has the right to refuse that treatment by way of an advance refusal. A Jehovah's Witness, for example, can already refuse to receive a blood transfusion. That refusal is binding on the doctor and cannot be overruled.

An advance statement enables people to leave instructions about their potential medical treatment, in anticipation of a time when they are no longer capable of making decisions or of communicating them. The sorts of decisions that can be made are only those that a fully competent adult is allowed to make.

When mentally competent, each of us has the right to consent to or refuse any form of medical treatment. The instructions included in an advance statement would enable exactly the same decisions to be made, and can therefore include both consenting to treatment and refusing it. As is the position for competent adults,

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however, advance statements cannot force a doctor to give a particular type of treatment, or ask a doctor to do anything that is illegal. An advance statement could not, for example, ask a doctor deliberately to end life. The blunt truth is that if a doctor took such action, he or she would be exposed to a charge of murder.

An advance statement would, however, allow patients with cancer, who know that they may at some future time lose capacity to consent to treatment, or capacity to communicate that consent, to provide that consent in advance. An advance statement could even allow the patient to consent to the use of new drugs on a trial basis, if that is what the patient wanted. Equally, a terminally ill patient could request that treatment is provided to sustain life for the longest possible time, even if the resultant treatment might be thought by others to be unnecessarily burdensome.

The Government recognise that the Law Commission's proposals on advance statements raise complex issues on which many people hold strong personal, religious or ethical opinions. For that reason, the Green Paper specifically seeks views on whether legislation in this area is appropriate, and, if so, what its objectives should be.

The Law Commission was of the opinion that certain types of serious medical procedures, including sterilisation and donation of tissue or bone marrow, should receive additional independent supervision to ensure that the best interests of the incapacitated individual are properly protected. That supervision could take the form of consideration by the courts, an independent second medical opinion, or certain other types of supervisory mechanism.

The Law Commission suggested that, in certain limited circumstances, a departure from the best interests criteria, which I mentioned earlier, might be justified. One of those relates to the withdrawal of artificial nutrition and hydration from a patient in a persistent vegetative state. In view of the different opinions that exist about whether such patients can, in fact, be said to have best interests, the Government believe that it is important that the criteria are considered very carefully in each and every case that arises. The Green Paper seeks views on the vital ethical considerations that must be addressed in reaching decisions on the discontinuation of artificial nutrition and hydration in those cases.

The Law Commission also considered that there might be a case for departing from the best interests criteria in the area of medical procedures and research for the benefit of others. The commission recommended that it should be possible for those procedures to be authorised, in relation to a person without the capacity to consent to them, if the procedure would not cause the person significant harm and would be of significant benefit to others.

An example of that type of procedure is the removal of samples of blood or taking a mouth swab from the patient to investigate his or her genetic make-up. That could be of significant benefit to other members of the patient's family in identifying and treating inherited conditions. Procedures of this nature could also extend to non-therapeutic research into conditions from which the patient is suffering, for the benefit of others suffering from that condition. The Law Commission suggested that such research should be justifiable only where the procedures involved minimal risk for the patient.

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The Green Paper seeks views on whether such research is ethical and reasonable, and on whether the conditions for research proposed in the Council of Europe convention on human rights and biomedicine provide adequate safeguards for patients unable to give consent.

The Law Commission also proposed an extension of the existing legal framework for enduring powers of attorney to include the concept of a "continuing power of attorney". At present, it is possible for people to make enduring powers of attorney to enable their property and financial affairs to be looked after if they become mentally incapable. The Law Commission's proposals would enable a person with capacity to appoint somebody to make decisions on his or her behalf if that capacity was ever lost. Under those provisions, the decisions that could be taken would cover health care and personal welfare matters in addition to financial matters.

The House of Lords Select Committee on Medical Ethics expressed concern that the decisions of attorneys are unlikely to be completely objective--for example, an attorney might find it difficult to decide whether to approve costly medical treatment or nursing care if he or she is either paying the bills or entitled to benefit from the patient's estate. Equally, given the changing nature of relationships, the choice of attorney might quickly become out of date and, by the time an attorney is asked to act, he or she might have lost the close rapport that once existed with the patient.

The Law Commission has attempted to take account of those concerns by proposing safeguards and by listing a number of areas where an attorney should not be able to act on behalf of a person without capacity. However, here, too, there are different views. The Green Paper therefore seeks responses on whether legislation in that area would be appropriate, as well as seeking comments on the Law Commission's detailed proposals.

The Law Commission also considered the need for new laws to ensure that a broader group of people are protected from abuse and neglect. That group would include people who may not be able to protect themselves, such as the elderly or those with serious physical illnesses, as well as those suffering from mental incapacity. In particular, it recommended that social services authorities should have a new duty to investigate cases of possible neglect or abuse, and should have short-term powers to protect people in those cases.

The Government believe that, although there may be merit in some of the Law Commission's recommendations concerning the new provisions, there may not be a pressing need for reform in the light of powers that already exist in this area. The consultation paper therefore seeks views on the need for legislation and on the practicalities of the proposals.

The Law Commission's proposals in each of these areas clearly have substantial implications for the legal and administrative systems that would be needed to manage and supervise their operation. The commission therefore recommended a new court jurisdiction that could deal with personal welfare and health care issues, as well as property and financial matters. The latter are currently dealt with by the Court of Protection and the Public Trust Office. The Law Commission's proposals would require a substantial extension of their jurisdiction, as well as offering an increased role for the civil courts.

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The Government can see the advantage in having a unified jurisdiction in that area, but there would clearly be considerable implications for the court system, in terms of both resources and practicality. The consultation paper invites views on the structure proposed by the Law Commission and on the form and extent of court jurisdiction that would be appropriate in particular areas.

The Green Paper raises many issues of great sensitivity, complexity and importance. They must be addressed to ensure not only that the interests of incapacitated persons are adequately protected, but that those who must make decisions on their behalf have a clear legal framework within which to do so. The Government are determined to make progress in an area in which those who lack mental capacity, and those who care for them, are not adequately protected under the law today. The Government are equally determined that any reform should command the widest possible public support.

The Government have not yet made any decisions to legislate. Any legislation would be of wide-ranging social significance and of comparable scope and sensitivity to the Children Act 1989. I therefore hope that the Green Paper will generate a wide range of responses from all those with an interest in this area, whether professional or personal, in order to assist the Government in determining the best way forward.

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