Joint Committee on the Draft Mental Incapacity Bill Written Evidence

56.Memorandum from Dr David Shakespeare (MIB 68)

  I am writing to offer my comments on the Draft Mental Incapacity Bill I have five years' experience working as a Specialist Registrar in Rehabilitation Medicine, with a special interest in care for those who have suffered severe acquired brain injury and disabling conditions such as multiple sclerosis.

  Although I applaud the general intention of this Bill to clarify the Law on decision making for adults with mental incapacity, there are a number of aspects which give me grave cause for concern. I appreciate that there have been extensive discussions about this proposed legislation since the Law Commission Report in 1995, but I would urge the Joint Committee to proceed with caution as I believe that this Bill (as presently constituted) places many vulnerable people at grave risk of abuse.

  A common scenario which would trigger powers authorised by this Bill (advance decisions, lasting power of attorney) would be when a person suffers a severe acquired brain injury, for example through trauma or spontaneous intracranial haemorrhage. It is notoriously difficult, even for a specialist, to give an accurate prognosis in the early stages after such an event and decisions on commencing supportive nutrition and hydration taken at that stage may not be as fully informed as the gravity of the situation warrants. The Bill must include a stipulation that the opinion of a specialist should be sought to ascertain as accurate a prognosis as possible.

  The Bill correctly states that there is a presumption against lack of capacity, but there seems to be few safeguards to support that the standard of proof is only "on the balance of probabilities" rather than "beyond reasonable doubt" (Section 3). Once a deputy has been appointed, it seems to be left up to the deputy to decide whether an incapacitated person has regained capacity for a particular matter, and no review process is specified (Section 20). This is way below the level of protection provided for persons detained under the Mental Health Act, and I would recommend that capacity should be reviewed periodically especially for those whose prognosis is not terminal (eg any non-progressive acquired brain injury). This task could be entrusted to the Medical Visitor.

  It should also be made clear that it is an offence for a person to use powers contained in this Act, when a proper prognosis has not been ascertained, where there is evidence that capacity may have been regained, or where the person may be manifesting a view contrary to the previous decision. In support of this, I would recommend that an Application to the Court of Protection should be allowed by anyone who is reasonably involved in the care of someone who is alleged to lack capacity. It should also be appropriate for the Court to make an interim order prohibiting actions if there is reason to believe that the person may have capacity or may be manifesting a view contrary to the previous decision.

  In the Explanatory notes (section 20 Clause 2), reference should not just be made to patients in the locked-in state, but there should also be a recommendation to seek the assistance of a Specialist Speech & Language Therapist for those with cognitive and language problems.

  Finally, I remain very concerned that the measures introduced by this Bill will lead to a diminishing of the quality of care for severely disabled patients through a general feeling that withholding nutrition and hydration with the aim of ending life is in their best interests. I would urge the Committee to consider the wider effects of this Bill before proceeding to make recommendations.

July 2003

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 November 2003