Joint Committee on the Draft Mental Incapacity Bill Written Evidence

78.Memorandum from Rethink (MIB 739)


  1.  Rethink, formerly known as the National Schizophrenia Fellowship, is the charity for people who experience severe mental illness and for those who care for them. We are both a campaigning membership charity, with a network of mutual support groups around the country, and a large voluntary sector provider in mental health, helping 7,500 people each day. Through all its work, Rethink aims to help people who experience severe mental illness to achieve a meaningful and fulfilling life and to press for their families and friends to obtain the support they need.

  2.  Rethink has a National Advice Service which responds to enquiries from its members and the general public on a range of issues. These include some related to mental capacity, especially appointeeship, whereby someone may be appointed by the Secretary of State for Work and Pensions to claim and receive social security benefits for a person who lacks capacity.

  3.  Rethink is an active member of the Making Decisions Alliance and of the Mental Health Alliance, which correspondingly campaigns on the reform of mental health legislation. We have a particular concern that there is compatibility between proposed mental incapacity and mental health legislation and a focus on people whose mental capacity fluctuates.

  4.  In general, we support the policies of the Making Decisions Alliance and have been involved in formulating them. Our submission concentrates on issues of particular concern to Rethink. These include fluctuations in mental capacity due to severe mental illness.


  6.  People with fluctuating capacity and those seeking help on their behalf have to cope with a group of problems which make access to help difficult. Many forms of severe mental illness involve fluctuating capacity, during which thinking and mood are affected by symptoms like delusions, paranoia or euphoria, etc. During such episodes, the affected person's judgement is often impaired and the views and preferences which they hold when well are submerged, but eventually return after appropriate care, treatment and support has been provided. During episodes of severe mental illness, the person affected is likely to deny that they have mental health problems and to blame those trying to access care and help in what they perceive to be the person's best interests. Conflict often results and relationships may be severely strained. A major problem for those seeking help is that mental health professionals often have difficulty in assessing the situation, especially at first onset, because they are likely to be misled by delusionary ideas, diverted by tensions and conflict, and have little knowledge of the person's views, preferences and presentation when well. As a result, symptoms of mental illness may go unrecognised by professionals until crisis point is reached, by which time it may be necessary to use compulsion under the 1983 Mental Health Act. Help seekers currently have no recognised status in pressing for help, and the affected person's rights to personal autonomy and confidentiality are often given as reasons by professionals when they refuse to help or intervene. In Rethink's view, early intervention is crucial, as is continuity of care.

  6.  Rethink believes that many of the proposals in the draft Incapacity Bill, if properly implemented, should improve the situation by creating a new legal framework in which the position of those seeking help or caring for someone with fluctuating mental capacity would be better recognised. The concept of Lasting Power of Attorney and Court appointed deputies should be helpful, although not at the first onset of mental illness which will require special consideration. We should like the new legislation—preferably both the Mental Incapacity Bill and the draft Mental Health Bill—to promote the use of a wide form of Advanced Statement which could detail a person's capacious views and preferences about the arrangements to be put in place should they be affected by a further episode of mental illness.


  7.  As we have said above, we support the Making Decisions Alliance in pressing for advance statements in which a person states their preferences, not just refusal of treatment through an advance directive.

  8.  Recommendations were made in paragraphs 12.12-15 of the Report of the Expert Committee (the Richardson Committee) in November 1999 that clinical teams should be expected to help patients develop advance agreements. Further, when a patient is subject to assessment and initial treatment under compulsory powers, the clinical team will be expected to take account of any recent advance agreement developed in consultation with specialist mental health services. Guidance on advance agreements would be included in the Code of Practice on the new legislation.

  9.  Paragraph 5.14-15 of the White Paper, Reforming the Mental Health Act (Cm 5016-1) acknowledge that advance agreements about the sorts of treatments an individual would prefer should they come to lack capacity, may be an important factor in determining what care and treatment is in a patient's best interests. However, neither provision for advance statements not advance directives was included in the draft Mental Health Bill.

  10.  Sections 275-76 of the Mental Health (Care and Treatment) (Scotland) Act 2003 provide for advance statements that specify:

    —  the ways the person making it wishes to be treated for mental disorder;

    —  the ways the person wishes not to be treated.

  11.  The effects of advance statements include:

    —  a person giving medical treatment authorised by virtue of the Act shall have regard to the wishes specified in an advance statement

    —  where the Tribunal or designated medical practitioner takes a decision that conflicts with those wishes, they are required to record the reasons for this, to notify the person who made the advance statement and to place a copy of that record in the person's medical records.

  12.  Rethink seeks advance statements and advance directives in the Mental Incapacity Bill compatible with the proposed new mental health legislation. We also expect that if preferences are over-ridden, the reasons for doing so must be recorded in writing, handed to the patient and stored in the relevant records. For patients subject to compulsory powers, we believe that an advance directive should only be over-ridden by a tribunal, unless there is an imminent danger. The new Court of Protection should also take into consideration the content of Advance Statements.

13.   Overlap between the Mental Health Bill and the Incapacity Bill

  We are concerned that the two Bills propose two separate systems for substitute decision making and that if these are implemented, a good deal of confusion could result for both service users and carers. We therefore believe that it is essential that detailed consideration should be given to:

    —  The relationship between the new Court of Protection and the new Mental Health tribunal, as it appears that both bodies would be involved in determining best interests and settling disputes.

    —  The relationship between the proposed Nominated Person and the holder of the Lasting Power of Attorney or Court appointed deputy.

  It is important that there should be no incompatibility between the two new systems.

14.   Assessment of capacity

  We support functional assessment of capacity, which will be set out in detail in the proposed Mental Incapacity Bill Code of Practice. As members of the Mental Health Alliance, Rethink is seeking for compulsory powers in proposed mental health legislation to be based on mental incapacity, with some exceptions for people who are at substantial risk of suicide or a danger to others. In general, people with capacity have the same choices in their mental health care as people have with physical health care needs. Rethink also believes that careful thought needs to be given to the mechanism for decision making to return to a person who regains mental capacity following an episode of severe mental illness.

  15.  According to the draft Mental Incapacity Bill, mental capacity will need to be determined when a particular decision takes place; in the Mental Health Bill we should anticipate any assessment of capacity would first take place in a preliminary examination prior to consideration of compulsory powers. It is important to ensure that there is compatibility between the draft Mental Incapacity Bill and Mental Health Bills and their Codes of Practice.

16.   Advocacy

  In clause 159 of the draft Mental Health Bill, the appropriate Minister must arrange, to such extent as he considers necessary to meet all reasonable requirements, for help to be available from mental health advocates to qualifying patients and to their nominated persons. This falls short of an advocate being available as of right, but we are concerned that the Mental Incapacity Bill does not provide any duty to provide advocacy support at all. Rethink believes that independent advocacy support should be provided when important decisions are being considered when mental capacity is an issue.

  17.  We should just add that if a person has an advocate under mental health legislation, they would need the same advocate under mental incapacity legislation, having gained trust with them.

18.   Appointeeship

  We believe that appointeeship should come within the scope of the Mental Incapacity Bill because, at present, it is an administrative procedure, which, in the experience of Rethink, is problematic. When power to claim and receive benefits is transferred from an individual with mental incapacity to someone else, they should be protected through mental incapacity legislation.

19.   Implementation

  Rethink has some concerns as to how the cost of the new proposals is to be met. We hope it will not result in a financial burden on those who come under the new legislation or their carers. If the arrangements are to be monitored adequately, this will add considerably to the cost of implementation. We would also draw your attention to the need for those implementing the legislation to be adequately trained, as well as staff in relevant organisations, and for the new arrangements to be well publicised to ensure that anyone able to benefit takes advantage of the opportunities available.

20.   Conclusion

  We have referred to our main issues of particular concern, but we welcome this Bill and are generally impressed by its content. We have attached as an annex two case studies which demonstrates the sort of problems which arise due to fluctuating capacity in someone with severe mental illness.

August 2003


Case Study: Effects of Mental illness on Capacity to deal with Financial Affairs

  This case illustrates how someone with schizophrenia acquired substantial debt because there was nobody to deal with her financial affairs while she was unable to do so because of illness and hospitalisation.

  Carol is a divorced single parent in her late forties and has two children in their teens. She has schizophrenia but her condition was stable for 12 years until two years ago, when she was no longer able to cope and the children asked to go into foster care. Carol was sectioned shortly after the local social services children team became involved. She has had several long admissions into hospital during the last two years, all under section 3 of the Mental Health Act. During these admissions, her benefits were reduced and as a result there was insufficient money in her bank account to pay her direct debits for fuel etc. The bank imposed a charge of £30 each time this happened and added interest, until she was overdrawn by £2,500.

  Although the children were in care, Child Benefit continued to be paid into Carol's bank account. She was not normally entitled to it, except when the children came to stay with her on some weekends and during some school holidays. She is now required to pay back £1,400.

  Carol now owes nearly £4,000. Her entire income is made up of Income Support and Disability Living Allowance.

Case Study: How Impaired Capacity can hinder Access to Care

  A man who suffered a mental breakdown at university is now paranoid about his immediate family, who are doing their best to help him. However, he sees any support they suggest as oppressive and detrimental to his interests. He is very intelligent and can communicate well, but his views are distorted through his delusional beliefs. His family are unable to persuade the mental health professionals that he needs help. Instead they are felt to be over anxious and interfering.

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