Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 1-19)



  Q1  Chairman: We would like to start this afternoon's proceedings, and I welcome you and thank you for attending. I have some house-keeping points before we proceed to the questions. Even though we have the microphones the acoustics in these rooms are not good, so if you could speak up we would be grateful; we are extremely grateful for the written evidence and the fact that you have found the time to attend; the session is open to the public and it may be recorded for broadcasting; there will be a verbatim transcript of the evidence and you will be able to check the text for accuracy before it is published in the report; as you have already seen, I am afraid proceedings have to be adjourned for divisions in both Houses which may occur and, if divisions occur, I will adjourn for ten minutes; I think there is a note of the Members' interests which are relevant on the table in front of you; and, generally, we are a Joint Committee which is charged to examine the draft Bill. We are not producing a White Paper on mental incapacity, and we have tried to structure the questions which you have seen in relation to the structure of the Bill, and the experience that you have had in Scotland would be extremely helpful to us. Mr Ward, would you start by introducing your colleagues?

  Mr Ward: Thank you. I am a Scottish solicitor and Covener of the Mental Health and Disability Committee for the Law Society of Scotland. We are grateful for this opportunity to come down and we hope that our experience in Scotland will be of some help to you in considering what appears to us to be a rather different piece of proposed legislation before you. I had the opportunity of preparing the first draft of our memorandum of comments and I take it we can take that as read. If so, I am going to introduce my two colleagues. Two matters were not fully covered in that memorandum: firstly, just what in simple terms the Scottish legislation does encompass and David McClements will say a few words about that, and you may have picked up from our memorandum the importance of our general principles, and Liz Craigmyle will say a few words about that.

  Mr McClements: Our Act has seven parts to it. Part 1 contains the general principles, but in addition it contains the roles and responsibilities of different agencies operating under the Act. Part 2 deals with the creation and exercise of continuing powers of attorney and welfare powers of attorney. This part sets down the main obligations on attorneys, the powers of the court and the role of the Office of the Public Guardian. Part 3 created an authority to intromit with funds belonging to an adult. It can only be used to access funds in a nominated bank account, and its operation is controlled by the Office of the Public Guardian, to whom the intromitter is accountable. Part 4 makes provision for the management of finances of an adult by a registered establishment. This will become operational from October of this year. By regulation a limit of £10,000 has been set for this type of management, and monitoring again is exercised by a public body, the Care Commission. Part 5 establishes the authority to treat by medical methods with appropriate certification other related matters, including the authority for research. Part 6 creates intervention orders and guardianship orders, both for financial and welfare matters. Intervention orders were proposed by the Scottish Law Commission for the purpose of one or more orders which may not have ongoing purpose. The functions of guardians are detailed in this part of the Act, together with the methods by which their actions are supervised. Finally, Part 7 deals with a miscellany of issues such as transitional arrangements from pre-existing law and the creation of the new offence of ill treatment and wilful neglect.

  Ms Craigmyle: The new Millennium heralded the beginning of exhaustive on-going multi-disciplinary training relative to the then Bill, and now the new Act, and everyone was, and still is, on a steep learning curve. Training events ranged from hundreds to only a few participants and they included adults with incapacity, those with learning disability, with mental health problems, with head injury, with dementia. Trainers emphasised that, if nothing else, participants should leave the event with the gateway principles foremost in their minds. If they wished to intervene in the life of an adult then these principles, the first four of which are enshrined in the Act, must be met, and arguably the fifth principle should also be enshrined. The principles are simple: they are the principles of benefit, past and present wishes, views of relevant others and least restrictive intervention and, finally, encouragement of skills. Extensive accessible training materials have been produced by the Scottish Executive, the Office of the Public Guardian, voluntary agencies such as ENABLE, SAMH and ASAD. Websites carry extensive regularly updated guidance. The executive introduced amongst its material an aide memoire in the form of five principles printed on a credit card sized card which was very popular. The perfect piece of legislation does not exist but the Adults with Incapacity Act has generally been welcomed and embraced as an empowering piece of legislation with the emphasis very much on the adult's capacity. It has increased the profile of independent advocacy, and it has given many vital voices a voice.

  Q2  Chairman: Thank you. If I can start, what advantages are there in requiring evidence of a defined mental disorder as a diagnostic threshold above and beyond a test of a person's capacity?

  Mr Ward: I think the general pattern of legislation of this type is to have a fairly wide gateway which enables one to access the legislation and then careful controls before one actually intervenes. At the stage of the gateway where one can potentially access the legislation, I note differences between your draft Bill and our Scottish Act in two areas. First of all, yours has a gateway of mental disorder. Ours has a gateway of mental disorder and physical inability to communicate. I think there are potential difficulties in your narrower gateway—for example, an advance statement operates during incapacity, if incapacity means only incapacity through mental disorder. It would not operate where there was a complete physical ability to communicate. Secondly, our definition of incapacity relates to incapacity both to act and to make decisions. I have difficulty in following your draft Bill which has a definition of incapacity relating solely to making decisions, yet for example under the general authority only permits acting which makes one wonder whether that means an Act that excludes a decision? What does it mean?

  Q3  Chairman: I am not entirely clear. If you have in Scotland a mental disorder but you can communicate, how is that caught by your Act?

  Mr Ward: There are two gateways, in effect. The broad and most common one is mental disorder which has a wide definition and is the same definition as in our mental health legislation. It covers most situations, in fact, of incapacity other than the situation of a complete inability to communicate for physical reasons. We have that gateway also.

  Q4  Chairman: Would that mean if somebody, for example, had no mental disorder but was deaf blind and could not communicate, they would still be caught by your Act?

  Mr Ward: They might be but only if they were completely unable to communicate because another feature of our Act is an absolute obligation that if someone can be communicated with, or even if they have incapacity if their wishes and feelings can be accessed by any means whatsoever, they must be accessed and at the level of capacity we only have incapacity through inability to communicate if that cannot be done at all. It is the same with wishes and feelings. I do happen to know that one of your witnesses in the second batch from Scotland who is quite well known to me has written some very interesting papers on accessing the thoughts of people who would appear to most of us to be totally unable to communicate. In Scotland now, if it is possible, even if only with very skilled assistance to communicate, we must.

The Committee suspended for a division.

  Q5  Chairman: Firstly, I apologise. I am afraid this is going to happen again. It is at the time of year when both Houses are extremely busy, particularly the Lords. To continue, it has been pointed out to me on the point made about the difference between the two Bills that in the draft Bill, in clause 2(3) it says, "A person is not to be treated as unable to make a decision unless all and practical steps to help him to do so have been taken without success" Does that meet the point you were making about the difference between the two Bills?

  Mr Ward: I think the language in the Scottish Act is just a little stronger on the equivalent point. Our Act says, firstly, on the inability to communicate, "A person shall not fall within this definition by reason only of a lack of deficiency and a faculty of communication if that lack or deficiency can be made good by human or mechanical aid, whether of an interpretative nature or otherwise."

  Chairman: I see. That is an interesting comparison which we will take on board.

  Q6  Stephen Hesford: In our draft Bill there is a presumption of capacity which I see as very important. Do you have the same presumption, and is it spelled out on the face of your Bill?

  Mr Ward: We have a strong presumption of capacity in our law, anyway. Unless my colleagues correct me, we do not need that presumption because we have our principles so tightly limited in any situation in which we would intervene anyway. I mentioned earlier the gateway—the gateway is incapacity. There has to be incapacity and then we still do not do anything, we do not intervene, unless very stringent principles are satisfied.

  Q7  Stephen Hesford: From what you were saying before, is that seen as a positive or as a negative, to access something that you otherwise would not have because of your incapacity?

  Mr Ward: What I have termed the gateway is a positive. The concern in debate was that we should not exclude anyone who might potentially benefit from the Act's provisions, so at the level of the gateway we want the broad gate where we have it, but before we intervene, before we apply the Act's provisions which is immediately discriminatory—we are doing it for the best of reasons but we are dealing with somebody differently because of their disability and to some extent taking away their right to act or make decisions and putting some other mechanism in place—it is restrictive and a very stringent test.

  Q8  Mrs Browning: In the Bill before us capacity assessment seems to be based more on a functional approach, whereas in the Scottish legislation you seem to have a little menu of clearly defined descriptions of mental disorder, including, I note, any mental illness, personality disorder and learning disability. I would be very concerned about that and would like to make two points: firstly, the actual writing in of personality disorder on a Bill—which I think is extremely difficult to define, not least because it is a spectrum—and also how much you define in Scottish law "learning disability". Is that based on the old IQ test? How do you define that?

  Mr Ward: Liz is from ENABLE and is a specialist in learning disability, so she can answer the second part of your question. My personal view has always been that I have had some concern about personality disorder and such a definition for the reason you give. One could say that probably almost every personality has its little disorders somewhere within it, and some to a rather greater extent, but in the context of capacity legislation, for the reasons I have given, that is not a great problem because we are not applying any provisions to anyone just because they come within that definition. We only apply them if they come within that definition, and then the principles are satisfied.

  Ms Craigmyle: On the learning disability front, our law historically refers to mental handicap which is now resisted in this day and age, and the definition that my organisation tends to use is "related to birth" or "shortly after birth" but we recognise that there can be acquired learning disability also through head injury or progressive genetic conditions, of which there are many. I recognise the difficulties, however, in what you are saying about the definition of learning disability and how it is perceived, but it is in there and on the face of incapacity as we have it.

  Q9  Lord Rix: In terms of learning disability, has the Act made a great deal of difference to people with learning disability, as such? Has it made a difference yet to carers? Has it made a difference to staff or professionals? Has it helped in any way to make their lives better at this stage?

  Ms Craigmyle: Yes, I believe it has made a difference. The training events have been pretty exhaustive, as I said in my opening statement, since the beginning of the Millennium and they are on-going. Much of my training is to carers or to people with learning disabilities themselves and there were many good things to come out of the big initial training events, the ones with over 100 attending each event in a multi disciplinary sense. One of the things that they focused on was that much could be learned, if you like, from the coal face, and those involved in caring or people with learning disability themselves were the ones who were being proactive in making sure the professionals involved in the life of a person with a learning disability became aware of the content of the new Act and of what it could mean to that person and to their carers. For the very first time in our legislation it gave an empowerment to carers to have a voice and to interact and talk to the doctors primarily responsible—normally that would be GPs but it could be a consultant—and say to them, "Here is what I know about the adult; here is the adult's best and worst performances; I see him or her on a good day and a bad day and here is what I think the adult is capable of." Generally I feel very much that it has enhanced, people are embracing it, it is not perfect but it is welcomed, and they are as comfortable at this moment in time as they can be with it.

  Q10  Baroness McIntosh of Hudnall: You mentioned earlier on in your evidence that there was some degree of overlap between the mental health provision and the mental incapacity provision particularly in the definition of disorder. Do you think, drawing on your experience, that it is necessary to have separate legislation for mental incapacity and for mental health, and would, in your view, the coherence of implementation in those areas be improved if the two areas were combined under one legislative framework?

  Mr Ward: Firstly, what is mental health law? In Scotland our Mental Health Act has always been rather narrower than the English Mental Health Act. The English Mental Health Act contains in Part 7 a lot of financial management provisions which we would class as incapacity matters, not Mental Health Act matters, so there is a question of definition. Back in 1986 I think I was the first person to suggest to the Scottish Law Commission that they should carry out a comprehensive review of incapacity law and mental health law. Having recorded that, I would say that I do favour the separate treatment of the two areas involved because they are two different subjects. Mental health law in its core sense is to do primarily with forms of intervention, compulsory intervention. Incapacity law is quite a separate matter: it is to do with addressing the difficulties which some people may have in acting and making decisions for themselves across a wide range of purposes. We have had recent reform of both: we now have a new Mental Health Act on the statute book about to come into force. We had two separate processes of review and consideration, but very much in parallel, very much linking to each other, and I think even down to questions of terminology there is a risk of confusion between the two. There is confusion on your door here which talks about the "Mental Health Incapacity Bill"!

  Q11  Baroness Knight of Collingtree: I think it could be said, Mr Ward, that our major job on this Select Committee is to see how and in what way we can improve the draft Bill, and on that point I would just like to ask you two quick questions. Firstly, might the inclusion of some explicit general principles improve the draft Bill, and I also want to ask you about the best interests test. Does this test, do you think, provide the necessary protection from abuse for adults with impaired capacity? I think that question is important to put to you because I think you considered the concept of best interests was inappropriate in Scotland in relation to decisions made on behalf of adults with impaired capacity. Could you comment?

  Mr Ward: Our general principles, absolutely, are serving us well. They appear at the outset of our Act: they apply to any intervention which can mean a decision by a court, a decision by somebody with some form of authority, a decision by someone acting anywhere in the process that may confer authority, a decision not to do something is an intervention, and our principles apply really throughout the whole legislation. They are a major safeguard and also a very considerable help. Because I specialise I tend to get difficult issues coming to me, and very often if one sits down and says "Just a minute, test this against the general principles", you are well on the way to the best answer. If I were making recommendations I would recommend the concept of much stronger general principles with overriding force. Ours apply to the extent that the exclusion of liability provisions in our Act do not help you if you breach the principles. Secondly, on best interests, there was consensus, I think, in Scotland that this was appropriate in child legislation and not in adult legislation. The best I can probably do is refer you to what the Scottish Law Commission said on the subject. They basically adopted a principles approach rather than a best interests approach, and if you would bear with me for a moment because I think this is quite important I will read what they said. "Our general principles do not rely on the concept of best interests of the incapable adult. We consider that "best interests" by itself is too vague and would require to be supplemented by further factors which have to be taken into account. We also consider that "best interests" does not give due weight to the views of the adult, particularly to wishes and feeling which he or she had expressed while capable of doing so. The concept of best interests was developed in the context of child law where a child's level of understanding may not be high and will usually have been lower in the past. Incapable adults such as those who are mentally ill, head injured or suffering from dementia at the time when a decision has to be made in connection with them, will have possessed full mental powers before their present incapacity. We think it is wrong to equate such adults with children and for that reason would avoid extending child law concepts to them. Accordingly, the general principles"—which they set out—"are framed without express reference to best interests", and I was reading from paragraph 2.50 of the Scottish Law Commission Report on Incapable Adults.

  Q12  Baroness Knight of Collingtree: In addition to those important points that you have put to the Committee, would it not be appropriate also to point out that judgment on what is the best interest, for all sorts of reasons, can vary very considerably indeed?

  Mr Ward: I have proposed in some of my writing almost a hierarchy of decision-making. At one end we have the adult's competent decision. We may be able to get a competent decision from someone with impaired capacity about parts of a composite decision. We may have clear wishes and feelings from them, and some of these are instinctive. We see proposed very complex mechanisms for assessing decision-making capacity. If we think about it, the most important decisions in life we tend to make instinctively—the career we follow, who we marry, the sort of place we like to live in. Can we really pick up some of these rather theoretical methods of decision-making and apply them to those decisions we make? We make decisions instinctively and we make them on a habit basis. Somebody who may be quite impaired in capacity may always choose tea rather than coffee when offered it because they always have done. In many ways you might say they are incompetent but that may still be a valid decision. We then can build up a picture of what somebody's ethos is from their family and friends and someone unrelated to them. Deciding what is in their best interests, in my view, is almost at the end of the hierarchy of possibilities. If we have no information about the person then perhaps the best we can do is for me to say, "Well, what is in your best interests?", but on dealing with adults my own view is that that is a fundamentally unsatisfactory approach.

  Q13  Huw Irranca-Davies: I can understand the reasoning behind the differential between adults and children but do you think there is any case to be advanced as we look at our legislation for extending that into, if you like, the grey area of the 16-18 year olds?

  Mr Ward: Our adults are adults at 16. Our child law effectively stops at 16 and our Incapacity Act definition of an adult is someone who has attained the age of 16. Basically the thrust of Scots law is that adulthood starts at 16 but for some purposes is qualified up to 18, so probably our experience is not going to be so helpful.

  Q14  Mr Bercow: I understand your concern that adults should not be patronised, Mr Ward, but in order that it is not merely—as I am sure it is not—just a semantic dispute, could you for my benefit give what you think is the best practical example of how the benefit criterion is more appropriate than the best interests criterion?

  Mr Ward: I think it is, for instance, somebody living in very odd and in many ways unsatisfactory circumstances, and in a very poor form of accommodation. In our approach you would say, "Is this what they have chosen? Is this where they have always been living? Is there really a benefit to that particular adult in taking them out of where they have chosen to be?", whereas if, with no knowledge of that person, you and I walked in together we might well agree and say, "Goodness me, their best interests might be that we should get them out of here right away."

  Q15  Baroness Fookes: But best interests in our draft legislation is qualified in a number of ways, including the person's wishes. Does that not make a difference? It is not best interests on its own, is it?

  Mr Ward: It helps to make some difference but it is still the starting point. We start with principles.

  Q16  Mrs Humble: I was going to raise a very similar point because you said in your objection to best interests that you would then have to be qualified in a variety of ways and you would have to expand upon it, and of course in the draft Bill it is expanded upon because there is a checklist. Does that checklist answer your problems? Does it deal with the problems that you believe arise from the best interest description? Does that checklist reflect the statement of principle that you have in your legislation?

  Mr Ward: I do not think it does to the same extent, no. Language is important and it still does start with the concept of what is paternalistically in this person's best interests, and I think compared with our principles our principles are stronger and more focused on the adult as a person and on non intervention at all, unless it is clearly shown to achieve a benefit and to be the least restrictive.

  Q17  Stephen Hesford: Is there a practical concern based on previous experience, ie before the implementation of your newish Act, what my colleague over there called a patronising view, because sometimes when one deals with a carer one feels that, with the best of intentions, the carer is taking decisions which ultimately could be said to be in their best interests as a carer rather than the person that they are caring for.

  Mr Ward: That is why our legislation has nothing equivalent to your startling proposition of a general authority!

  Chairman: I think we are coming to that later on.

  Q18  Stephen Hesford: But, in terms of best interest, is there any evidence or example that your method addresses that potential problem?

  Mr Ward: Our comparison and experience obviously has to be a comparison between what we experience now and what we were experiencing before our Act was introduced.

  Q19  Mrs Browning: To follow up, I agree that there are very often times when carers put a point of view that is perhaps their view and their interest rather than the person they are caring for, and I say this as a carer myself. There are also times, however, when the carer, up against "authority" for want of a better word, finds that authority's view is based not on anybody's interests but on the resources they have to hand at any given day of the year. How do you deal with that?

  Mr Ward: By applying our general principles rigorously to both.

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