Joint Committee on the Draft Mental Incapacity Bill Written Evidence

108.Memorandum from the Royal College of Speech and Language Therapists (MIB 895)

  The RCSLT welcomes the opportunity to comments made on this draft Bill. Speech and Language Therapists (SLTs) are the only registered profession qualified to assess peoples' communication capacity including the use of augmentative and alternative communication methods across all age and care groups.

  Our comments are as follows:

  1.  We welcome the broad aims expressed in the overview, and the attempt for the Bill to provide a clear informal system to ensure people are able to maintain their maximum level of autonomy.


  The consultation process could be strengthened by sending reminders to key stakeholders a week before the end of the consultation period—NICE do this.

  Also, is it possible to manage consultations so that they are not occurring during mid July and August or to extend the consultation period till mid September? We have had few responses because of SLTs on holiday or using this time to review their services.


  The objectives of the bill seem reasonably clear however, because it is written within a legal framework is still not easily accessible. It seems sufficient and workable, in that no identifiable gaps (other than those noted below—section 5 and 6) have as yet been noted. Further analysis, discussion and more detailed information about how the Bill is to be operationalised, the requirements for decision makers etc is needed to then consider if it is really sufficient and workable.

  Are we correct in assuming implementation of the Bill will be covered in "section 30 Codes of practice". The draft codes of practice from the Adults with Incapacity—Scotland could be useful when developing these codes. We assume that these codes would be consulted on. The NICE guidelines of schizophrenia, and the National Service frameworks for "mental health" and "older people" would also be a useful source of information.



  The single definition of capacity is welcome but it is not clear from the Bill who would carry out this assessment, especially in the assessment of capacity depending on the level and complexity of the decision to be made. It would be important to establish that any person(s) making an assessment and judgement about capacity is suitably qualified to do so.

  There may need to be guidance stating the type of decisions that could be made from an assessment of capacity, so that the patient is not subject to unnecessary repeated assessments. This would need to be carried out by a person suitable qualified to assess the communicative demands for the decision to be made as well as the abilities of the client. It would be useful to know what is intended for the statutory and best interest checklists when they will be available? However, we appreciate that this might be within the codes of practice, yet to be developed.



  We understand the section to mean "If an adult lacked capacity, treatment could be carried out if it was considered (by the person with general authority) to be in the best interest of the adult and after working through statutory checklists and consulting with others interested in the welfare of the patient".

  There could also be a number of interested others who could be involved. Consultation would depend on the decision maker's knowledge and understanding of the different disciplines, their roles, accessibility. For example for an adult with dementia and dysphagia (feeding and swallowing difficulties) and SLT would be the only person able to assess both the changes in communication/cognition and the feeding/swallowing difficulties the patient was experiencing, and the medical, ethical and legal aspects to decision making for feeding in the late stages of dementia are complex.

  Our concern therefore is that some professionals might be excluded because of the lack of knowledge of the decision maker.

  Where there is no formal decision making mechanism is in place, it would beimportant to secure a multidisciplinary approach to inform the decision making of the person with general authority.

  We would suggest that an explicit statutory checklist is developed to include:

    (a)  a summary of the process for decision making process/framework

    (b)  information about the role /contributions of the different professionals who might be involved.

  Information to assist with this checklist might be found in NICE guidelines for schizophrenia, and the National Service frameworks for "mental health" and "older people", and the Health Professional Council Standards of Proficiency.


  The points noted above would also apply to these sections, since an attorney would be expected to make decisions about health matters after discussing the issues with "all relevant people". A concern then is how would they know who the relevant people are unless that information is made available to them.

  The meaning of the word "instrument" is not clear (section 8.2, and later sections).

August 2003

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