Joint Committee on the Draft Mental Incapacity Bill Written Evidence

120.Memorandum from the British Association of Social Workers (BASW) (MIB 997)

  BASW welcomes the publication of this Draft Bill. However, we agree with the Law society response in stating:

        "that whilst we would wish to fully embrace these proposals it is not possible to understand the impact of them without first examining the code of practice which accompanies the legislation."

  We would highlight particularly the following issues and append a further submission from BASWs special interest group in this specialist area.

  BASW is the largest organisation of qualified professional Social Workers, which publishes Professional Social Work on a monthly basis. We have professional officers for Scotland, England, Wales and Northern Ireland and a number of specialist groups with particular interests. BASW has produced a professional Ethical Code of Practice, which is widely accepted as definitive for Social Work practice.

  1.  The Best Interests principle is a legal one, and to some extent could be criticised as being subject to paternalism or indeed medical paternalism since it seems to be largely within the realm of a medic to decide. As Social Workers we are concerned that the issue of capacity and its determination is really a social determination rather than a medical one. Medics could be accused of partiality in this matter since it would appear the issue is only investigated when a Treatment (Medical) is at issue and then a medic determines whether a person lacks capacity to give consent and then arranges for someone to make decision on their behalf. At best one could argue that a different medic should make the determination on capacity to avoid the possibility of invested interests being possible.

  2.  Who decides what is in the "Best Interests" is clearly an issue that the Bill has given some though to, and many group appear to misunderstand. We believe the Bill to be saying that the substitute decision maker should not be deciding what they feel is in the Best interests of the patient, or what the doctor feels is the best interests namely the Treatment in question, but what the patient themselves would have wanted. This is a difficult concept and LPAs and deputies and the Courts need to be clear about this. Advance statements, refusals and directives are very important here and should be encourage for all those with fluctuating or deteriorating capacity and for those who lack capacity during acute or chronic phases of illness. This is a practice issue, which should guide both medics and social care professionals working with such patient groups.

  3.  Clearly there is an issue for those patients who never had capacity and how their care is managed and the role of parents who legally would have had decision-making capability during their childhood. Would Parents naturally continue to have decision-making capabilities? It seems this issue needs clarification.

  4.  At the age of majority it would appear that parental care decision-making is substituted my medical decision-making and the role of carers is subjugated.

  5.  We are concerned that there should be explicit statements that decision-making and capacity should not be confused with a lack of ability to communicate. Communication attempts should first be exhausted and those who are best able to communicate utilised as interpreters. This should include family members, carers, care professionals and not just the medics attempt via what is normally a formulaic assessment of capacity.

  6.  We would like to see recognition of the Social Care professional in the determination of capacity, to provide a balance against the medical model, which may highlight a need for treatment. The social care dimension would provide a check and focus on the rights of patients to refuse treatment as required by the Human Rights Act and indeed the Magna Carta.

  7.  We accept the view that capacity should be presumed unless there is a need to challenge that presumption. However, we do not accept that it is a medic that is the best person to decide when to challenge that presumption and/or to determine the capacity issue.

  8.  It would seem to BASW that capacity is a social determination, which could be best undertaken by a social care or psychological Professional rather than a medic. Capacity loss may have a physical cause but its evidence is behavioural or social in effect.

  9.  We would invite the committee to examine in more detail the application of the Incapacity legislation in Scotland from which we can learn many lessons.

  10.  We do not feel that the issue of fluctuating capacity is fully explored within the Bill what happens when people regain the ability to decide for themselves? How long does substitute decision making last and can it be re-instigated without further reference to legal determination? Perhaps social care professionals could be used as arbitrators? Rather than expensive legal options.

  11.  We also have grave concerns about the ethical position of a substitute decision maker especial where drug trials or research and development are concerned. How can a drug trial, which may offer no clinical benefit to a patient, be in their best interests? It may be in the interests of medical science or even other patients but we are reluctant to allow patients who lack capacity with no ability to refuse or opt out or challenge their own treatment to be subjected to either drug trials or R&D.

  12.  The Law Commission and the BMA have already published guidance on the assessment of capacity from a legal/medical viewpoint, we would like this guidance to include and be available to social and psychology professionals to enable the registration of professionals who may be able to undertake this very important task with appropriate training in Medical/legal and social perspectives on capacity.

  13.  A balance on the use of powers and an ability to protect and intervene with patients who lack capacity would be the development of a Public Law Duty to investigate and protect patients where there is suspected abuse or neglect.

  14.  It is suggested within the Bill that a criminal offence of "ill treatment and neglect" should be created. We are concerned that this should be extended to cover exploitation as well and should provide the ability to protect the victim as well as prosecute the perpetrator.

  15.  The success of the Scottish Act is due in no small part on the duties imposed on local authorities. In addition there was created a "Mental Welfare Commission", which has oversight of both the Public Guardianship Office and the Local Authority. These practical safeguards are a desirable feature, which should be incorporated into England and Wales legislation. This should also prevent a two-tier system for the protection of vulnerable adults being created in the UK.

  16.  We have concerns regarding the "General Authority" to make decisions, whilst recognising the need for some sensible operational system of managing day-to-day decision making without building in adequate safeguards. Especially in social care settings such as hospitals, care homes, day centres, private homes and any public place or setting where services are provided. The possibility of the misuse of the general authority powers without safeguards is therefore great.

  17.  We are also concerned that there is no legal definition of what constitutes "care" and whether the Bill applies to people cared for in their own home or under the care of a carer.

  18.  A number of Social Care organisation have expressed concern about the possible abuse of the general authority and a resolution mechanism perhaps utilising the Local authority could perhaps be incorporated to address these concerns.

  19.  We are concerned that clarity is provided to explain the role of different substitute decision makers where more than one may exist for example one person may have financial decision making capabilities whilst another welfare decision-making authority. Conflicts should not arise, however, some arbitration method should be established.

  20.  We are concerned that Local authorities as well as the Health Trusts and PGO should be informed of all LPAs in order to register them locally and ensure that LPAs are effective.

  21.  We are also concerned that this Bill should be financed appropriately and that means adequate resources for the Court of Protection and an expansion of the role of the PGO. Local authorities will need some extra financing to enable social care professionals to undertake the role of public protection, capacity assessment and assistance in development of advance statements for those that require them.

  22.  We are concerned that patients who lack capacity will be able to access legal aid for appropriate legal representation. The lack of direct provision in Scotland produces delays in legal proceedings and has reduced the effectiveness of the Incapacity legislation.

  23.  We are concerned that the true costs of this legislation are met by central government and that those costs may be considerable.

  24.  Our other concern is that the Incapacity legislation must be compatible with the new Mental Health Bill and ideally should be considered in parallel. Issues such as ECT, the role of a nominated person v an LPA etc. Must clearly be addressed within both Bills.

  25.  Social Care Professionals mange the care of people who either have fluctuating of deteriorating capacity as part of their normal duties. The requirement to adress capacity issues as part of their Care management/care programme Approach should be routine practice. This is a development, which needs to be addressed within the legislation.

  26.  Finally we are concerned that this Bill has been issued without substantial work being undertaken on the associated Code of Practice. We would like to be involved in the progress of the Bill and Code since we feel that the social care perspective on capacity is essential to ensure that rights are protected.

August 2003

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