Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 49-59)



  Q49  Chairman: I believe you were in the audience when we started. May I welcome you. I do apologise about the timing, you realise it was out of our hands, it was what was happening in both chambers. If you would like to introduce yourselves, and, if you wish, make a short statement then we will proceed to questioning.

  Dr Lyons: We have decided we will not make statements, I do not think we have anything to add to the statement that Mr Ward made. We would rather answer the questions that the ladies and gentlemen would like to ask us. I will introduce myself and then I will ask my colleagues to introduce themselves. My name is Donald Lyons, I am a consultant psychiatrist. I specialise in the care of people with dementia. I have been the spokesperson for the Scottish Division of the Royal College of Psychiatrists on the Adults with Incapacity Act in Scotland and a member of the National Steering Group for implementing the Act.

  Dr Bowden: I am Keith Bowden, I am a Consultant Clinical Psychologist with Forth Valley Primary Care NHS Trust. I specialise in working with people with learning disabilities.

  Professor McMillan: I am Tom McMillan, I am a Professor of Clinical Neuropsychology at the University of Glasgow. My areas of interest are in part brain injury and the rehabilitation of brain injury. I am seconded two days a week to the Glasgow Health Board where I advise them on the development of services for brain injury rehabilitation in the Glasgow area.

  Mr Ramm: My name is Mark Ramm, I am a Consultant Clinical Psychologist at the Orchard Clinic in Edinburgh, which is a hospital for mentally disordered offenders who are the detained under the Mental Health Act. I am also the British Psychological Society's representative on the Reference Group in Scotland which is looking at the implementation of our recent new Mental Health Bill.

  Q50  Chairman: I would like to ask the first question, you will find these questions somewhat familiar, what advantages are there in requiring evidence of a defined mental disorder as a diagnostic threshold above and beyond a person's capacity? Is it important to maintain consistency in definitions between Mental Health and the Mental Incapacity legislation?

  Dr Lyons: As you will have heard from Mr Ward the definition of mental disorder as contained in the Adult Incapacity Act is exactly the same as the definition of the mental disorder contained in the Mental Health Act, and that until recently has been "mental disorder" or "mental handicap" however caused or manifest. This is a wide-ranging definition of mental disorder. There was a lot of discussion leading up to the new Mental Health Act as to whether the definition of mental disorder legally should be narrowed and the answer eventually was no it should not. It remains wide. As with the Mental Health Act, the Incapacity Act has the additional test of capacity in that the adult must be incapable of acting or making decisions or communicating decisions or understanding decisions or retaining the memory of decisions. That is the test. Many people with mental disorder will not pass that test of incapacity and there is a grave, grave danger that we must all guard against that is written in great big letters "do you not assume an incapacity because a person happens to have a mental disorder". Concentrating on whether the person does or does not have a mental disorder is maybe the wrong way to look at it. There has to be something causing the incapacity, mental disorder is one, an inability to communicate is the other. The critical bit is the test of capacity, and that is what we must concentrate on.

  Q51  Chairman: Is that the same point as the assumption in our draft Bill, there is capacity until proved otherwise?

  Dr Lyons: That is a clear assumption in general.

  Q52  Chairman: Do your colleagues wish to comment on that first question?

  Dr Bowden: The importance of the functional test of capacity cannot be over-emphasised. It is very important in the Scottish Act that it is about decision-specific capacity. I think there is a danger if we start using terms like "incapacitated adults". We need to be very careful that we do not move into a situation where we are assuming people have or do not have capacity per se. It is important that it is about specific decisions, and that may be about specific decisions at different times in a person's life. It may be that at one stage in a person's life they are able to make that decision and at another time, perhaps because of their emotional state or their other circumstances, they may not be able to make that decision at that time. It is important that the legislation is robust enough to deal with that situation and to identify that.

  Q53  Mrs Browning: In practical terms how do you deal with people whose conditions means they demonstrate variable capacity as a result? If I can give you a couple of examples: in the case of people with autism, even people high-functioning autism, their ability to conceptualise something is pretty limited. If you give them choices, "Would you like to do A or B?", and if that is not within the ambit of their own personal experience, they would have huge difficulties. They may even make a choice that would be totally inappropriate purely because they have not been able to conceptualise it. There are practical ways of going through that, if you were saying, "Do you want to go and live in A or live in B?", you overcome it by taking them to A or B rather than sitting around in a case conference. For example, with schizophrenia where people may be going through an episode at any given point in time but later on may be in a recovery situation. How in practical terms do you deal with those conditions?

  Dr Bowden: I think the principle of minimum intervention is one of the important elements with the Act—and I am speaking as a clinician—that we should be intervening at the minimum level to assist that decision-making. An important emphasis in the Scottish Act is that the onus of communication is placed on the health professional, that we should be seeking to communicate with the individual in the most effective way to ensure that their contribution to the decision-making process is as much as it should be. With a person with Asperger's, for example, it is about specific time-related decision making and it may be that at one point we do need to implement the certificate of incapacity and take that decision on behalf of the individual whilst acknowledging as much as we can about what their desire is. On another occasion when we have been better at communicating or finding a way to assist that person to make that decision then they have the capacity to make that decision and we should follow their decision.

  Q54  Lord Pearson of Rannoch : Would you accept that, although mental health as a category can move forwards and backwards in various degrees over time, there are some people who are so mentally handicapped, with such severe learning difficulties and intellectual impairment, however you want to compromise, they will never be able to make decisions for themselves or something of that kind. Would you accept there are people in that category?

  Mr Ramm: There are many situations where it is very easy to make the decision they have a lack of capacity. I think that the legislation works very well in relation to be able to deal with their needs and the needs of their carers. What is often more problematic is there can be an assumption by many that that is always an easy decision and there are many, many situations where deciding whether somebody has capacity or they do not is very difficult. There are many borderline cases, as has been observed. There are cases where a person's level of capacity to make decisions for themselves will change over time and there are many cases where a person will be capable of making a decision for themselves in one area, for example financial affairs, and not in another. Because of these more complicated cases what is required typically for clinicians and the individuals involved in the operation of the Act are very clear guidelines and very clear processes on which to make these decisions.

  Chairman: We will to break for ten minutes. There is a vote in the Lords.

The Committee suspended for a division.

  Chairman: We can now proceed.

  Q55  Baroness McIntosh of Hudnall: Sorry about the interruptions. Just picking up from the discussion that was going on before we disappeared, on the question of how you define incapacity and in what situations and so on, in our draft Bill there is clause 2.1 which lists some ways of testing whether a person is unable to make decisions. Is it your view that this is a helpful list? Is it comprehensive? Will it assist you as clinicians in making the decisions that you have to make?

  Dr Bowden: I think there is a similar difficulty with this list as with the adults in the Incapacity Act in terms of the specificity that is involved in this estimate. I think it operates very well in terms of the straightforward decisions where it is very clear that someone has capacity about a decision or indeed where it is very clear that someone does not have incapacity about that decision, but in terms of the more complex decision-making that I as a psychologist would be involved in assessing, apart from giving me a general structure under which to operate, it does not really give me the gold standard of assessment that I would look for to give advice as to what that decision should be.

  Q56  Baroness McIntosh of Hudnall: Can you say what is missing from it, is there an obvious thing that is missing from it, or is there something in your legislation that you would want to see included?

  Dr Bowden: I think it is about the Codes of Practice and the level of detail that comes in in the Codes of Practice. I think the high level operation of this is fine, but it is about how that is applied in practice and I think our experience is that different practitioners are interpreting this sort of high level statement differently in the way they apply it in practice, so the key is about further definition and detail at the Codes of Practice level.

  Dr Lyons: May I make a quick point about that. Medical practitioners will like this definition and I know where it comes from because it is almost a direct lift from the Broadmoor Hospital case. For that reason, because it pertains to a judgment of medical treatment, doctors will quite like and will operate this quite well. I actually quite like it. I have to say I probably like it more than I like the Scottish definition. The thing that is missing from this definition is that the person may be able to make a decision but may not be able to secure his interests by acting on this decision. Mr Ward mentioned that earlier and that is something to think about. That is in the Scottish definition, it is not in this. The other comment I would make about this is not so much in 2.1 it is more in 2.4. As I specialist this particularly interests me and it concerns the question of memory. The draft Bill is quite right to say that a person shall not be regarded as incapable because he or she does not spontaneously remember the decisions. I had an outpatient clinic on Monday and I do not remember the decisions that I made there, but I wrote them down and with a bit of luck I will go back and be able to read my writing and I will agree with what it was. That is the key, that there has got to be some degree of consistency to the decision-making. The person must either make the same decision consistently given the same information, and/or when presented with a record of that decision they have to recognise that decision as their will. That is the issue of memory decision-making to my mind.

  Professor McMillan: If I could add to that. The point seems to me to be the person has to retain information long enough to be able to make the decision because you can then return to the issue and check whether the decision is consistent. So it is not being able to remember the information, it is remembering long enough to make the decision. There are quite a few patient groups where that will be an issue. They can retain information but only for a short period of time.

  Q57  Chairman: How do you handle the situation where a person retains the information and they welcome the decision and then they forget all about it and you come back to implementing the decision and they say, "This is all wrong I do not want to do this." What happens then? Is that person not capable?

  Dr Lyons: That person is not capable if there is no consistency to that person's decision-making. My opinion then is that that person is not capable.

  Dr Bowden: Unless they are able to give reasons for that change of decision.

  Lord Rix: Surely, yes, that must be right.

  Q58  Stephen Hesford: Just on the back of that answer, which I must say I personally found very helpful, can I just ask the panel having practised the Scottish version and having look at our version in simple yes or no terms which would you rather practise under?

  Dr Lyons: Shall we take a vote chaps? Ring the division bell at this point!

  Mr Ramm: Speaking personally there is no doubt in my mind that I would much rather work under the Scottish Act. I think there are advantages in several areas. We were hearing before about the general principles. I think they are a very important aspect of the legislation and they are very, very helpful for clinicians and for everybody in terms of interpreting how it should be applied and what they should be doing. I think one of the other advantages of the Scottish legislation at present is the issue of granting certificates of incapacity. There is something important, I believe, about there being something within the system that allows a more careful analysis or assessment for issues which have a higher importance or threshold, because there is a threshold issue. Obviously in practice one would not want to make it too difficult for a GP and a family to care for, say, an elderly relative in terms of administering their finances. One would not want to make that too difficult for them to organise between them, but if the relatives for example were to decide that they were going to sell the relative's house, at that point the whole issue would deserve a much more careful assessment of the person's capacity in relation to deciding that issue. The certificate in Scotland makes it much clearer when there should be a multi-disciplinary assessment and the nature perhaps of this assessment.

  Q59  Stephen Hesford: Thank you. Do you all share this view?

  Dr Lyons: Let us be clear on the question that is being asked here. Is the question that is being asked purely about the definition of "capacity" or about the Scottish Act and the drafting of this Bill in general?

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