Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

2.Memorandum from Dr Donald Lyons (MIB 989)



  This document is a collection of thoughts by one Scottish Psychiatrist who has experience of operating the Act and who has given advice on the development and implementation of it. It is based on my own experiences and concerns relayed to me by others, mainly in the medical profession but also social workers, lawyers, patients, carers and voluntary organisations with whom I have been associated. I will comment mainly on provisions of the Bill regarding personal welfare and medical treatment rather than financial matters.


  Section 2 defines incapacity. The definition is very similar to the test of competence in case law, notably Patient C in Broadmoor Hospital. The Scottish definition is not dissimilar to this. In Scotland, incapacity is defined as being incapable of acting or making decisions or understanding decisions or communicating decisions or retaining the memory of decisions. On balance, I prefer the definition in the draft Bill. The main difference is the question of retention of information. It is my opinion that a person does not have to spontaneously recall all the decisions he or she makes in order to be regarded capable of making these decisions. I cannot recall the decisions I made at my last outpatient clinic but I do not think I am incapable of making these decisions. I made a written record of the decisions and I will (hopefully) agree with the written the record that I made and recognise that as having being my decision at the time. I would therefore advise that, as far as memory is concerned, the definition is increased slightly. In addition to retaining information for long enough to make a decision, the person must make that decision consistently on the basis of the same information and/or agree with a record of that decision when presented with it and recognise that as being his/her wish. Otherwise, I applaud the definition of incapacity.


  I dislike the term best interests as it sounds paternalistic. The general principles of the Scottish Act are better. The Act stipulates that any intervention must be for the benefit of the adult, must be the least restrictive in relation to the adult's freedom, stipulates that the past and present wishes of the adult must be taken into account and confers a duty to take the wishes of others into account in so far as it is reasonable and practicable to do so. The Scottish Act has a further principle that applies only to people holding certain offices under the Act to encourage the adult to use existing skills and develop new skills.

  With regard to the draft Bill, in addition to substituting benefit for best interest, I applaud the duty to encourage participation under Section 4(2b).


  I have grave concerns about Section 6 in its entirety.

(a)   Financial Issues

  My reading of this section is that I could tell a fund holder that a person is incapable of using money to pay for certain services, use money from his account to pay for it and use money to pay for my own expenses in doing it. This, in my opinion, is a recipe for abuse and fraud. Even with a very tight Code of Practice, I would still have significant concerns that any of us might be open to being financially abused by this Section. In Scotland, a simple mechanism for withdrawal from accounts exists under the Adults with Incapacity (Scotland) Act 2000. If Granny forgets to pay her bills, I can obtain a Medical Certificate of Incapacity from her doctor, obtain a form from the Public Guardian stating what I want to use her money for and have my application countersigned by a person of standing in the community (passport signatory sort of person). Armed with this and with the approval of the Public Guardian, a fund holder is authorised to transfer money from Granny's account into a separate account operated by me. I must keep records at all times of this because the Public Guardian, who will know of all such mechanisms, can spot check at any time. The mechanism is simple and easy to operate, the only potential difficulty being finding a person to do it as it must be a relative or friend and not somebody acting in a professional capacity. In my opinion, it is an appropriate mechanism and offers the adult much more protection than Section 6 of the draft Bill would.

(b)   Medical Treatment

  I have similar concerns with regard to medical treatment but our experience in Scotland has been mixed in trying to make the Scottish Incapacity Act work. As I read the draft Bill, it would authorise reasonable medical treatment that is in the "best interests" of the person and subject to the general provisions of the best interests test. In Scotland, medical treatment always requires a Certificate of Incapacity expect for emergency cases. Also, medical treatment is very broadly defined as "any procedure designed to promote or safeguard the physical or mental health of the adult". This has proved very difficult to work for many reasons. Many of us believe that the definition of medical treatment is too broad, the needs for certification should be reserved for major treatment decisions in order to achieve a balance between protecting the adult against possible assaultitive treatment and allowing healthcare professionals the scope to do what is reasonable for the benefit of the person. This part of the Scottish Act is currently subject to consultation. It is my contention that basic care, known as "fundamental healthcare", should not be subject to any formal procedure under the Act. Also, acute, short term treatment that would not normally involve the signed consent of the patient, should be in this category. Obviously, anybody intervening in such a way will follow the general principles laid out in the Act.

  I do recommend a degree of scrutiny for certain categories of treatment. In Scotland, there are regulations under Section 48 of the Scottish Act that prohibits some treatments and puts conditions on others. Although not written down, there is an understanding that neurosurgery for mental disorder is exempt from the Act and not permitted using this piece of legislation. The Court of Session must approve sterilisation for non physical reasons and hormonal implants to modify sexual drive. Some other treatments are made subject to a second opinion provided via the Mental Welfare Commission for Scotland. These are Electroconvulsive Therapy, abortion, hormonal drug treatment to reduce sexual drive and any treatment that is likely to lead to sterilisation as a consequence. There was much discussion about medication for mental disorder continuing beyond three months (or probably two months now to be consistent with the new Scottish Mental Health Act). It would be impractical to insist on second opinions but there are strong anxieties about the use of medication to modify behaviour. There are numerous studies in nursing homes suggesting that medication is overused. Under the Scottish Act, treatment is carried out using a Certificate of Incapacity, often using a Treatment Plan for which a template exists in the Code of Practice and therefore documenting the need for treatment and the consultation with others including the primary carer and nearest relative.

  I would predict that many organisations will express anxieties that medical treatment will be essentially unregulated by this Bill but I would encourage legislators not to go as far down as the certification/documentation road that Scotland has. I recommend that the general "best interests" test should apply to fundamental healthcare procedures and that these should include basic nutrition, hydration, skin care and integrity, oral care, elimination, eye sight, hearing, communication, mobility and simple measures to relieve pain and discomfort. It might also include general medical examination and continuation of any long term treatment to which the patient consented while capable. This might include long term treatment of diabetes, heart disease, chronic bronchitis etc. I think there is considerable merit in people with significant incapacity having a Medical Treatment Plan that is subject to annual review. This is good practice and would be cemented by being enshrined in legislation. Also, a Certificate of Incapacity should be required for single interventions that would ordinarily require the signed consent of the patient and such certificates should indicate consultation with relevant others. However, many of us believe that the Scottish Act has gone too far in subjecting all medical treatment to certification under the Act and it is being largely ignored in many areas, especially in acute care. I therefore recommend a period of time where a test of benefit/best interest is expected but where there is no need for any formal mechanism unless signed consent would be required.

  This is an extremely complex area, I have no doubt that many submissions will be made regarding this and it requires careful consideration to produce workable legislation, backed up by systems to assist and monitor the use of the Act, again something that we did not do in Scotland.

(c)   Powers of Attorney

  I have no specific thoughts about financial issues. These would be better dealt with by people with greater knowledge. Clearly, the welfare powers might include consent to treatment. Given the uncertainty as outlined above, the Bill should be clear about the role of attorneys with regard to consent to medical treatment. This caused some confusion in Scotland where it was not clear whether a Certificate of Incapacity was required in addition to the attorneys consent. In the Code of Practice, the decision was that both certification and consent were required but some doubt has been cast on this and this is subject to consultation at present.


  Again, I will mainly comment on welfare provisions. In Scotland, we have run into difficulties with "Welfare Guardians", roughly equivalent to the Court appointed Deputies envisaged by the draft Bill. We need to decide whether the appointment of such an office is permissive or prescriptive. For example, does the best interests test apply to a decision to move a person from his or her own home into a care establishment when the person lacks the capacity to make such a decision? This has been interpreted in different ways in different parts of Scotland. Where there is a strict interpretation that this is prescriptive and that all such decisions must require a Guardian (or Deputy), this has the potential for adding to delayed discharge problems in hospital and might leave people open to a risk of harm if a decision is delayed by court process. Also, the amount of court time that could be taken up would be prohibitive. It is clearly a mechanism that could and should be used where the person resists.

  In addition, there is the question of medical treatment where the person actively resists or opposes the treatment. This is unclear in Scotland but I consider that an Intervention Order is appropriate. There appears to be no equivalent procedure in the draft Bill, ie a single order to cover a single intervention for healthcare, personal welfare, finance or property. I presume that it would be the appointment of a Deputy for a short period. With regard to the powers of a Deputy, the Scottish Act and Codes of Practice are not clear as to the provision of healthcare in the face of active resistance by the patient and I recommend clarity in the draft Bill over this issue.


  Any Attorney or court appointed Deputy may have the power to consent or refuse consent to medical treatment. However, it must be clear that such a person does not have the authority to require any healthcare worker to provide any particular specified treatment.


  I welcome this part of the Bill that is a helpful clarification of the law and is consistent with case law and the good practice statement on this subject from the British Medical Association. However, see the subsequent note on Mental Health Act matters.


  This is an interesting short clause (Section 27) and might cause some problems.

  The regulations under Part 4 of the Mental Health Act include treatment for mental disorder for more than three months. My reading of the draft Bill is that it would therefore be unlawful to treat a person for mental disorder with any medication for that disorder for longer than three months. It would then appear that the correct procedure would be to treat the person under the Mental Health Act. For people in the community and in care homes, this would be inappropriate, impossible to administer and highly restrictive on peoples freedom. Also, it would result in an enormous extra burden of work for the Mental Health Act Commission who would have a duty to arrange an independent opinion.

  The situation as regards Electroconvulsive Therapy is also thrown into doubt by the Bill. As I understand it, it would be unlawful to treat a person with incapacity with Electroconvulsive Therapy even if the person were not resisting the treatment. The correct procedure would be to detain the person in hospital under the Mental Health Act. In Scotland, Electroconvulsive Therapy is a regulated treatment and it is possible to treat a person who is incapable of giving consent to the treatment but not actively resisting the procedure using the Incapacity Act with similar mechanisms for an independent opinion as exists under the Mental Health Act. I have found this a useful mechanism and less restrictive on peoples freedom. The situation in the draft Bill would require detention in hospital in every case. In my opinion, that should be the situation in law at present and I strongly disagree with the NICE "Good Practice" statement in ECT which suggests that it would be appropriate to administer treatment informally with full discussion with relatives, etc. I favour the Scottish approach.

  Also, as I understand the Bill, the fact that treatments regulated under Part 4 of the Mental Health Act are excluded would mean that a person could not make an Advance Statement refusing Electroconvulsive Therapy. This may be of concern to some user groups. In Scotland, we have had protracted discussions about this and the new Mental Health (Care and Treatment) Act contains provisions for a person to make an Advance Statement in respect of treatment for mental disorder but that this Statement could be overturned by a Mental Health Review Tribunal. This is an issue that would require further consideration.

  Taking all the above into account, I very strongly recommend that Section 27 is dropped and replaced with a section on regulated treatments and recommend the list of treatments regulated in the Scottish Act.


  My general concerns about these sections relate to the investigation of the use of powers by Attorneys and Deputies. In Scotland, the Public Guardian has a duty to investigate any concerns regarding a continuing financial Power of Attorney and a local authority duty to investigate concerns over Welfare Powers of Attorney. Any person with an interest may bring such matters to the attention of these bodies. The Mental Welfare Commission also has a role with regard to welfare where there is dissatisfaction with the local authority's investigation. For Guardians (the equivalent of Deputys, I think) the Public Guardian supervises financial Powers of Attorney and the local authority supervises the use of Welfare Powers.

  I have personal experience of referring matters regarding Powers of Attorney to both Public Guardian and the local authority and I find these useful mechanisms. From my reading of the Bill, I am not clear how concerns about the use of powers might be relayed to the court and also whether that mechanism is perhaps too cumbersome in the first instance and that the initial complaint or concern should be investigated by direct referral to either the Public Guardian or the local authority as is the case in Scotland. Perhaps this could be considered.


  The draft Incapacity Bill is welcomed and has much to commend it but it is my opinion that the general authority outlined in Section 6 is far too broad and that parts of the Act dealing with medical treatment and, in particular, the interface with Mental Health Law and the lessons from the Scottish experience, need to be rethought.

  I hope these thoughts are of interest to the Committee and I look forward to discussing any of these matters or any other matter that the Committee wishes to raise with me.

  Please note that, although I am presently the spokesperson for the Royal College of Psychiatrists in Scotland on the Act and I may have another significant national position in relation to the Scottish Act, the opinions stated are largely my own with input and advice from others who have discussed matters relating to the Act with me. They should not be taken as an official position of any other body within Scotland.


  McGrath AM, Jackson GA.

  Survey of neuroleptic prescribing in residents of nursing homes in Glasgow.

  BMJ. 1996 Mar 9;312(7031):611-2.

  Fahey T, Montgomery AA, Barnes J, Protheroe J.

  Quality of care for elderly residents in nursing homes and elderly people living at home: controlled observational study.

  BMJ. 2003 Mar 15;326(7389):580.


  Consultant in Psychiatry of Old Age and Medical Adviser for Elderly Services for Greater Glasgow Primary Care NHS Trust.

  Member of the National Implementation Steering Group for the Adults with Incapacity (Scotland) Act 2000.

  Spokesperson for the Royal College of Psychiatrists on the above Act.

  I am also a specialist in the administration of Electroconvulsive Therapy and a founder member of the Scottish ECT Audit Network.

  I was a member of Council of Alzheimer's Scotland—Action on Dementia for 8 years and have published extensively on the Scottish Act.

  Lyons D. (2002) Medical Treatment using the Scottish Incapacity Act: Will It Work. Journal of Mental Health Law 7 197-202.

September 2003



  This is a brief addendum to a report I previously submitted on the Draft Mental Incapacity Bill.

  The Bill has no provision for research on people on incapacity. The ethical situation as regards research where people cannot give consent is unclear and could be helpfully clarified by legislation under this Bill. In Scotland, the Adults with Incapacity (Scotland) Act 2000 permits research under the following circumstances:

    —  The research must be into the incapacity (causes, care, treatment, etc).

    —  The research must be of real and direct benefit to the adult. If it is not of real and direct benefit to the adult, it must be likely to benefit others with the same incapacity through greater scientific understanding of the condition.

    —  The research project must be one that cannot be performed using people who are capable of consenting.

    —  There must be no or minimal foreseeable risk or discomfort from the research.

    —  Consent will be obtained from a Welfare Guardian or Attorney with authority to consent. Failing that, consent is obtained from the nearest relative.

  The issue of consent has thrown up some issues in Scotland. For instance, a person with learning disability may not have a nearest relative available to give consent. Also, if a researcher wishes to study issues of abuse, it may be that the nearest relative is the alleged abuser and would be an inappropriate person to give consent. Under such circumstance, we have proposed that a person acting in an advocacy capacity with no interest in the research should be able to give consent on behalf of the adult. We do not as yet know whether the Scottish Executive will take this suggestion up.

  I hope this is a helpful addendum to my previous submission.

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