2.Memorandum from Dr Donald Lyons (MIB
A CRITIQUE BASED ON THE SCOTTISH EXPERIENCE
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
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
(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
(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
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
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
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
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
Quality of care for elderly residents in nursing
homes and elderly people living at home: controlled observational
BMJ. 2003 Mar 15;326(7389):580.
Consultant in Psychiatry of Old Age and Medical
Adviser for Elderly Services for Greater Glasgow Primary Care
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 ScotlandAction
on Dementia for 8 years and have published extensively on the
Lyons D. (2002) Medical Treatment using the
Scottish Incapacity Act: Will It Work. Journal of Mental Health
Law 7 197-202.
ISSUES ON MEDICAL RESEARCH
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