Joint Committee on the Draft Mental Incapacity Bill Written Evidence

117.Memorandum from the General Medical Council (MIB 949)


    —  The GMC supports the general aims and key principles.

    —  Some proposals need clarification and some important issues are not covered. So it's difficult to assess the overall effectiveness and practicability.

    —  Guidance on the practicalities of assessing capacity should accompany the Bill.

    —  Clarity is needed on who can make decisions for people aged 16 and less than 18 years. Can their decision be overruled by someone with parental responsibility?

    —  Under the general authority to act reasonably, for healthcare decisions, can a doctor proceed if a carer without Lasting Power of Attorney (LPA) disagrees with the proposed course of action?

    —  There should be restrictions on the type of medical procedures/treatments which could be authorised under the general authority and the LPA. For example contraceptive sterilisation. These might be set out in Regulations.

    —  Reservations about the exception to the rule against the use or threat of force or restrictions on the movements of an incapacitated person.

    —  Where LPAs give power to make decisions about life-sustaining treatments, they should set out the circumstances in which the donee could exercise such authority.

    —  It should be clear whether decisions about withdrawing life support from patients in a permanent vegetative state (PVS), or withholding or withdrawing artificial nutrition and hydration from patients nearing the end of their life, should be referred to court for a ruling.

    —  There should be legal protection for those who make healthcare decisions in good faith, in the belief that a valid LPA existed or that the person lacked capacity to make their own decision.

    —  Where an adult is incapacitated and has not previously made a LPA, it should be possible for a relative or other carer to be appointed a deputy for healthcare decisions with similar powers to those which might have been granted under a LPA.

    —  Advance decisions about refusal of treatment should specify the circumstances in which the refusal would apply as well as the particular treatment(s). Should advance refusals be held by the Public Guardian along with any LPA?

    —  More clarity is needed on the power of Medical Visitors to access confidential medical records and make reports.

    —  The Bill should also make clear whether participation in medical research can be authorised under the general authority of LPA.

    —  Key issues to be covered in accompanying Regulations or Codes of Practice should be outlined with the Bill. Suggestions for areas to be covered include: explaining how the role of Medical Visitor will work in practice; encouraging processes for local informal dispute resolution.

  1.  The GMC is the statutory regulatory body for the medical profession in the UK. Our core role is to protect the public by maintaining a register of doctors who are competent and fit to practise medicine. We do this by:

    —  Setting standards of good medical practice which reflect what society and the profession expects of doctors.

    —  Assuring the quality of basic medical education in the UK and co-ordinating all stages of medical education.

    —  Setting and administering fair systems for entry to and retention on the medical register.

    —  Dealing firmly and fairly with doctors whose fitness to practise is questioned.

  2.  We have an interest in the proposals in the Bill and accompanying explanatory memorandum, as they have implications for doctors' ability to meet the standards of conduct and care expected of doctors in their day-to-day relationships with patients and their carers. Copies of our principal guidance booklets, setting out these good practice standards, are enclosed for information:

    —  Good Medical Practice, 2001 edition.

    —  Seeking Patients' Consent: the ethical considerations, 1998.

    —  Confidentiality: Protecting and Providing Information, 2000 edition.

Q1  Adequacy of consultation preceding the draft Bill?

  3.  We participated in a consultative forum set up by the Lord Chancellor's Department. The forum had only limited information about the likely content of the draft Bill. Some key aspects were not made known to us before publication, for example the limited restrictions on the scope of powers under the general authority and lasting power of attorney (LPA). Some healthcare issues, which we suggested should be covered in the Bill, or proposed Code(s) of Practice, have not yet been addressed. This is unfortunate since, for healthcare decisions, creating LPAs will be a major new development with significant implications for doctors, patients and their carers.

Q2  Clarity of aims and objectives?

  4.  We support the general aims of the draft Bill, to improve and clarify the decision-making process for people aged 16 and over when they are unable to make decisions for themselves. We agree with the key principles, focusing on a person's decision-making capacity and making judgements based on their best interests.

Q3  Are the objectives adequately met?

  5.  In our view, the detailed proposals only go part of the way towards clarifying the legal position in relation to healthcare decisions, and may not provide adequate protection for vulnerable adults. We have concerns about how some of the decision- making mechanisms in the draft Bill might work in practice. And we believe there are important omissions, which should be covered in the Bill, accompanying Regulations or Code(s) of Practice. These points are expanded on in the comments below.

Q4  Are the proposals workable and sufficient?

  6.  It is difficult to assess this, without the further information sought in our comments on the Clauses of the draft Bill.


  7.  The principles set out in these clauses are well established in current medical practice and reflected in the standards we set for doctors. To ensure they can be followed, it's particularly important to provide clear guidance on how to approach assessments of capacity and who should carry out this role. For example, a "prescribed person" must sign a statement about the capacity of the person granting a LPA, but there is nothing to indicate who might fill this role. This might be addressed in a Code of Practice, published with the draft Bill so that some consensus on good practice can be established at the same time. The Code might draw on current joint guidance from the BMA and Law Society which is well regarded.


  8.  For people aged 16 and under 18 years old, paragraph 32 of the EM warns that there is overlap between the draft Bill and other areas of law affecting their decision-making rights (eg Children Act 1989). However it does not explain how these laws might interact. In addition, there is no discussion of what effect (if any) provisions in the draft Bill would have on the current position where, for someone in this age group, a competently made refusal of treatment can be overridden by a person with parental responsibility or the court. In the absence of clarification on these points, doctors and others would be left with greater uncertainty about who can legitimately make decisions for this group of people.


  9.  It will be helpful to healthcare practitioners, patients and their carers, to have clear legal authority to make welfare decisions on behalf of an incapacitated adult. However, we see two major concerns with the current proposal for the new general authority to act reasonably.

  10.  Someone relying on the general authority is expected to consult others, where practicable and appropriate, about whether a proposed course of action is in the best interests of the incapacitated person. For healthcare decisions, we need to clarify what should happen if anyone consulted disagrees, but that person does not hold any formal decision-making power (LPA or court appointment). Would a doctor be able to proceed with treatment, at least until someone with a welfare LPA or a court appointed deputy raised objections, or a court ruling was made?

  11.  There are no restrictions on the type of healthcare decisions which might be made under the general authority. This is except for matters regulated by the Human Fertilisation and Embryology Act, Organ Transplant Act and Mental Health Act (see Clauses 26-28). It's not obvious why these exclusions are proposed. But some other controversial treatments/procedures are not excluded so that, as it stands, the scope of the general authority would offer less protection to vulnerable adults than under current law. At present non-therapeutic or controversial medical interventions, such as contraceptive sterilisation and withdrawal of life support from patients in a permanent vegetative state, should be referred to court for a ruling. If it is the intention that issues of this kind should no longer go to court, this should be made clear so that the impact of such a change can be debated.

  12.  In our experience, those involved in providing care to an incapacitated adult want clarity not only about who has authority to make particular decisions, but also about the circumstances in which it is preferable or necessary to seek a view from the court. It's our view that the draft Bill should include provision for certain procedures, to be set out from time to time in Regulations, to be excluded from the scope of the general authority and LPAs, and to require court approval. Initial proposals for Regulations should accompany the Bill. This approach would be similar to that in current mental health legislation, and in the Adults with Incapacity (Scotland) Act 2000.

  13.  We also comment on issues raised by the use, or threat, of force (Clause 7) in the section on LPAs at paragraphs 16-17.


  14.  No explanation is offered why 18 is the minimum age at which someone can grant a LPA, when the provisions of the draft Bill are intended to apply to those aged 16 and over. We would expect capacity rather than age to be the deciding factor in making a valid LPA. Then it would be open to a parent (or other party) to challenge the validity of the LPA, or the acceptability of a particular donee, through the registration process.

  15.   Perhaps a difficulty arises from the present position where, although we generally treat the wishes of a person of 16+ who has capacity to decide in the same way as an adult, those wishes could be overruled by someone with parental responsibility or the court. If it is proposed that this situation should continue (in contrast to the position in Scotland), then it will be necessary to set out clearly how decisions should be made for people in this age group.


  16.  We support the general principle that LPAs (and the general authority) cannot authorise the use or threat of force, or restrictions on freedom of movement, where an incapacitated person is resisting doing or having something done to them.

  17.  However, we have strong reservations about the exception to this general rule - where there is a "substantial risk of significant harm" to the incapacitated person. We consider that the use of force or restrictions on movement might be permitted only in an emergency (similar to the Scottish Incapacity Act), where it is immediately necessary to save the person's life or prevent significant deterioration in the person's health. It should not be permitted over the longer term, or in non-emergencies, unless authorised by the court. We do not see how the threat of force could be justified. Would it not leave doctors and other carers open to criminal charges of ill treatment (Clause 31)?

  18.  In subsection 10 (4) (b), it's clear that LPAs can make express provision for the donee to make decisions to refuse life-sustaining treatments. Given the sensitivities and the often contentious nature of such decisions, we believe that in granting such authority the donor should be required to outline the type of treatment(s) and the circumstances in which the donee would exercise authority to decide. This would be similar to, and consistent with, the elements required in making a valid advance refusal. It would also help, where both an advance refusal and a LPA relating to life-sustaining treatment existed, in resolving any doubts or conflicts over what course of action would be consistent with the wishes of the incapacitated person.

  19.  In our experience, producing guidance on withholding and withdrawing life- prolonging treatment, doctors and others involved in making these decisions want as much clarity as possible about what decisions may reasonably be made without referral to a court. There are two particularly contentious issues where it would be helpful if the draft Bill made clear whether they would be covered by the LPA, or in what circumstances they should be referred to the court:

    —  Withdrawal of life support from a patient in a Permanent Vegetative State (PVS) or near PVS.?

    —  Withholding or withdrawing artificial nutrition and hydration from patients nearing the end-of-life.


  20.  This seems to offer protection only in relation to property and financial transactions done in good faith, where it later turns out that no valid LPA existed. Doctors and others making healthcare decisions would need similar protection.

  21.  In addition, a welfare LPA can only be used by the donee when the donor lacks capacity to make a particular healthcare decision. So where capacity fluctuates, decision-making presumably would alternate between the donor and donee. It can be difficult with some conditions to make a clear assessment of the person's capacity. Some protection is needed for those exercising authority under a LPA in the reasonable belief that the donee lacked capacity to make the decision for his/herself.


  22.  There is confusion about the role of court appointed deputies. On the face of the Bill their role seems limited to financial and property affairs. The EM states (paragraphs 67-70) they could be appointed to take welfare decisions, while suggesting that this will happen only rarely and their power will be very limited in scope and duration. In our view, the court should be able to appoint a deputy to take healthcare decisions for an incapacitated adult who has not executed a welfare LPA. Some adults will not have had the capacity to execute a LPA, and some may simply have failed to do so before becoming incapacitated. Unless it is intended that, in these cases, most of the person's healthcare would be provided under the general authority, appointing a welfare deputy would seem to be a necessity.

  23.  If healthcare decisions for people who have not made a welfare LPA are expected to be made under the general authority, this would seem to put these adults (and their carers) at a disadvantage. For example, some people are severely mentally incapacitated long before reaching adulthood so that many welfare decisions are made by their parents (or other carer). Their carers would expect to continue to be the principal decision-maker on their behalf, and would want this to be clearly recognised at law.

  24.  We would support a change to the proposals in the draft Bill so that, where an incapacitated adult has not previously executed a LPA, a relative or carer could apply to court to be appointed a deputy for welfare decisions, with similar powers to those which might be granted under a LPA. This would follow the approach taken in the Scottish Incapacity Act where the court can appoint a "guardian".


  25.  We welcome the proposal to give statutory force to advance refusals of treatment, along the lines established in current case law. However, we are concerned that the descriptions given in the Bill and the EM weaken some of the current protection, by allowing a treatment to be refused without specifying the circumstances in which the refusal would apply. Currently doctors are only obliged to act on an advance refusal if it is validly made and clearly applicable to the patient's present circumstances. We support continuation of this requirement, which seems especially important where life-sustaining treatment is being refused. This would still leave scope for the circumstances to be described in broad terms only and without using scientific language.

  26.  We also welcome the reassurance that a person who withdraws or withholds treatment, in the reasonable belief that a valid and applicable advance refusal exists, will not be liable. However, it would put the matter beyond doubt, if it were clear whether that person would have been expected to take steps to check the position before proceeding.


  27.  In addition to points raised at paragraphs 12 and 19 above, it would be helpful if the EM could set out the rationale for these particular exclusions.


  28.  Medical Visitors instructed by the court of protection are given statutory power to access confidential medical records and make a report (39(2)). There is a complementary duty to allow medical visitors access for this purpose (39(6)).

  However, similar powers (and a duty to comply) have not been given to medical visitors instructed by the Public Guardian, who will be involved in the day-to-day monitoring of the use of LPAs (48(1)d,f,h). In the absence of a statutory requirement, doctors would disclose confidential records to medical visitors, only where the patient or the person holding LPA has given consent, or where they judge that disclosure would be in the public interest. (Guidance is in our booklet Confidentiality: Protecting and Providing Information.) This may have practical implications for the work of medical visitors.

Q5  Relevant issues not covered by the draft Bill

  29.  Nothing is said about whether LPAs or the general authority can be used to authorise the participation of an incapacitated person in medical research. This is an important and contentious area, which should be addressed in the Bill. We would support an approach similar to that in the Scottish Incapacity Act.

  30.  We would like to see specific proposals on how and where advance refusals should be recorded. This is important given that the draft Bill would create a new criminal offence of deliberately concealing or destroying an advance refusal. Would it be possible for these to be registered with the Public Guardian, alongside any LPA?

Q6  How else might the draft Bill be improved?

  31.  To assess the overall effectiveness of the legislation, it would be helpful to outline the key issues expected to be covered in the proposed Regulations and Codes of Practice.

  32.  We have two further suggestions for inclusion in a Code. Medical visitors. It is difficult to envisage how the new role of Medical Visitor, responsible for monitoring the use of welfare LPAs, will work in practice in settings such as hospitals, GP practices, care homes. Will they follow a similar approach to the system of visits under current mental health legislation, or the Scottish Incapacity Act? Without more information, it's difficult to assess how effective an arrangement this might be for protecting the interests of incapacitated adults.

  33.  Dispute resolution. It would be helpful if decision-makers were encouraged to use local informal processes to try to resolve a disagreement about a patient's best interests, before approaching the court for a ruling.

September 2003

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