Joint Committee on the Draft Mental Incapacity Bill Written Evidence

92.Memorandum from Depression Alliance Cymru (MIB 188)

  I am writing to give a cautious welcome to the Draft Mental Incapacity Bill 2003, which, if implemented will do much to meet the concerns raised by Depression Alliance Cymru during the debate around the Draft Mental Health Bill last year.

  1.  The Draft Mental Incapacity Bill 2003 sets out conditions for mental incapacity which would mean that almost all people affected by depression would be deemed to have capacity. Furthermore, by placing the burden of evidence on the authorities to prove that a person lacks capacity, it almost guarantees that a person affected by depression would not be subject to detention and/or compulsory treatment.

  2.  I do have a number of concerns with the Draft Mental Incapacity Bill 2003:


  3.  First, there are two clauses—7(1)(c) and 10(2)(b)—concerned with the risk of harm to a person lacking, or thought to lack capacity. In these clauses, the term "substantial risk" is used, as it was in the Draft Mental Health Bill 2002. During the consultation it emerged that "substantial risk" would be taken by the courts to mean only "that the risk has substance". Using this definition, there is a substantial risk that any person with depression will take their life or carry out serious self-harm, just as there is a substantial risk that a young male who consumes alcohol in a public place will commit homicide. The use of the term "substantial risk" undermines the rights of those who have mental capacity—such as almost all of those with depression—who are clearly intended to be protected by this Act. Another, more precise term—such as "apparent and imminent danger" or "quantifiable and imminent danger" would be more appropriate to providing protection to those genuinely lacking capacity while safeguarding the rights of the majority.


  4.  The sections giving legal force to advance decisions are to be welcomed. This is particularly important at a time when Government values the self-help and self-management of expert patients who experience episodes of mental ill health which may, on occasion, result in their becoming mentally incapacitated. These proposals at least allow that expert patients know which treatments and therapies do not work for them.

  5.  Unfortunately, the proposed new right is entirely negative. It confers a right to refuse treatment, but has no corresponding right to request treatments known to the patient to be effective. An additional clause requiring practitioners to take account of advanced statements on preferred treatments would be a welcome enhancement to the Draft Mental Incapacity Bill 2003.

  6.  I am concerned with the degree of precision over treatment apparently required of the incapacitated person in 23(4)(a)-(c). It is important that the broad thrust of the proposed legislation is not lost in the detail. Common sense tells us that a person who refuses, for example, ECT also refuses ECT in combination with cognitive behavioural therapy. However, a practitioner might be able to stretch clause 23(4)(a) to suggest that this would invalidate the advanced statement. Much of this will no doubt be clarified in the proposed codes of practice. Nevertheless, I would urge that 23(4)(a) be amended to read, "that treatment is not and does not include the treatment specified in the advance decision."

  7.  I would also draw your attention to 25(2) which indemnifies practitioners from carrying out or continuing treatment refused in an advance decision. This clause is far too passive, since a failure to ask is all that is required to avoid liability. It would not be unreasonable to ask that a practitioner take reasonable steps to ascertain whether an advance decision exists prior to embarking on a course of treatment. I would suggest that 25(2) should read:

  8.  "A person does not incur liability for carrying out or continuing the treatment if, at the time—

    (a)  he has taken reasonable steps to find out, and

    (b)  he has no reasonable grounds for believing, that an advance decision exists which may be valid and applicable to the treatment."

  9.  Amended in this way, the clause would require that a practitioner at least ask next-of-kin whether an advance decision exists. Furthermore, if an advance decision exists, the substitution of the word "may" for "is" would oblige the practitioner to seek advice before rejecting the terms of the advance decision.


  10.  The Draft Mental Incapacity Bill 2003 creates two new offences—ill-treatment and/or neglect of an incapacitated person by the person(s) charged with their care, and concealing or destroying an advance decision to refuse treatment. These offences are to be welcomed. However, the proposed remedies do not seem proportionate to the seriousness of the offence.

  11.  Bearing in mind that we are talking about offences committed against—by legal definition—the most vulnerable people in our society, two years imprisonment and/or £2,000 fine is positively lenient. The offences concern matters more akin to serious assault than to, for example, shoplifting. As such, one would expect a maximum term of, perhaps, 10 years imprisonment to be more fitting.

  12.  I trust that you will take these matters into account in your committee's deliberations.

August 2003

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