Joint Committee on the Draft Mental Incapacity Bill Written Evidence

138.Further supplementary memorandum from the Lord Filkin (MIB 1225)


  Thank you for the letter of 28 October asking for clarification on access to information issues related to the draft Mental Incapacity Bill. I am replying to this request here and I also include further information on jurisdictional matters that were requested at the oral evidence session on 22 October.


  We are well aware that matters relating to access to information, confidentiality and data protection are both important and difficult for those who lack capacity. These issues do not feature explicitly in the current draft of the Bill because they will largely be dealt with by consequential amendments and by guidance. Consequential amendments will be included in the Bill for introduction.

  Guidance issued by the Information Commissioner currently advises that where there is an Enduring Power of Attorney or authority from the Court of Protection, it is possible to make a subject access request, under the provisions of the Data Protection Act 1998, on behalf of someone who lacks mental capacity. Whilst the EPA relates to the management of a person's affairs, the Information Commissioner's guidance is, we believe, an acknowledgement that the management of affairs may require access to clinical records, but it would be wrong to assume that this will always encompass decisions about treatment and care. There is also a Data Protection (Subject Access Modification) (Health) Order 2000 SI 2000/413 and a Data Protection (Subject Access Modification) (Social Work) Order 2000 SI 2000/415 that make reference to court appointed representatives being able to make a subject access request on behalf of someone who is incapable, provided that certain information is not disclosed to the representatives.

  As the Mental Incapacity Bill will introduce new wider functions of Lasting Powers of Attorney and deputies we intend to consult the Information Commissioner about the possibility of amending his guidance accordingly. The intention is to allow LPAs and deputies to make subject access requests where appropriate. Consideration is being given to the extent to which financial LPAs should be able to access health and welfare information and vice versa. We will also revisit the 2000 Orders and consider whether these will require amendment in the light of the Bill.

  We also propose to include in the Bill a similar power as provided by the Adults with Incapacity (Scotland) Act 2000 in relation to the health records of deceased individuals. This will enable those acting on behalf of persons without capacity who have an interest in the estate of a deceased person to access health records under the existing provisions in the Access to Health Records Act 1990.

  As now, under the Bill, registers of LPAs and deputies held by the Public Guardian will be searchable by the public so that it is possible to find out who has authority in a particular case.

  Access to information under the General Authority is more difficult because there is not one clear person with authority to act. Here we are dealing with the same situation as that which exists under the current common law. At present information is shared on a "need to know" basis and guidance for NHS staff, "Confidentiality: NHS Code of Practice", has now been published following a public consultation. The Code has been endorsed by the British Medical Association, General Medical Council and the Information Commissioner and can be found at Health and social care organisations operating under best practice have drawn up information sharing protocols. For example, the "No Secrets" document requires Adult Protection Committees to draw up common agreements relating to confidentiality.

  Where information is held under the common law duty of confidentiality, it must only be disclosed for the purposes that it was collected for unless there is explicit consent from the subject, a statutory basis for disclosure or a robust public interest justification for the disclosure. Regarding this latter justification, it is accepted that where there are concerns about abuse and vulnerable people are at risk, then absolute guarantees of confidentiality cannot be given.

  Our developing work on the Bill is leading us to examine further whether these current arrangements on information sharing would be adequate under the Bill, perhaps supplemented by clear guidance, or whether the Bill justifies a fresh look at these policies. We will continue to investigate this.


  On 22 October Mrs Humble raised the question of what would happen under the Bill to an incapacitated person on vacation in Scotland who suffers an acute episode of a terminal illness and is hospitalised in Scotland. We undertook to provide more information on this point.

  Here our intention is to provide rules in the Bill to match those in the Adults with Incapacity (Scotland) Act 2000 and to be consistent with the Hague Convention on the International Protection of Adults 2000. These provisions on Private International Law are technical and will included in the Bill for introduction.

  In relation to the Lasting Power of Attorney, the general position would be that an attorney appointed in England would be able to act on the incapacitated adult's behalf in Scotland. In general the law that applies would be that of the incapacitated adult's habitual residence at the time when the LPA was made. English law would be applied to matters such as whether the LPA is valid. However, the manner in which the attorney can make his decisions is likely to be governed by Scottish law.

  In relation to the application of the advance directive, the Scottish administrative and judicial authorities generally would apply Scottish law. The authorities are empowered to apply the law of England and Wales if it is in the adult's best interests and if the circumstances demonstrate a substantial connection to England and Wales. The Scottish authorities would take an overall view of the situation. It may be more likely, where it is an emergency situation, that Scotland would take a pragmatic approach and apply its own law. That would mean the doctor in charge doing what is reasonable in the circumstances although the incapacitated adult's representative could apply to court for an order if they wished to do so.

  I hope that this response adequately addresses your concerns. If you should require any further clarification please do not hesitate to ask. I am copying this letter to Rosie Winterton.

Geoffrey Filkin

November 2003

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