Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 80-91)



  Q80  Baroness McIntosh of Hudnall: If I am misquoting you then please reply.

  Dr Lyons: I said there was no doctor who would act to end somebody's life.

  Q81  Baroness McIntosh of Hudnall: Act to end somebody's life, that is fine, because that sets the context for what I wanted to ask you. It appears to me that underlying a lot of what you are saying about this particular issue is a general principle, not one of these general principles, a general principle that being alive is on the whole better than being dead. I am really not being flippant, I think that does seem to me to be an underpinning principle to what are you saying, which makes it difficult to understand where issues about best interests or benefit, however you want to describe it, fit into the language of decision-making if the general principle is indeed that being alive is better than being dead because that would lead to an assumption that anything—I know this is not how doctors and medical people proceed, I know the complexity of the argument—that prolonged life was preferable to something that did not. I think we need to understand what the governing principles are here.

  Professor McMillan: Is there not an issue of futility treatment and because the treatment is futile by definition of futility it is not going to accord benefit?

  Dr Lyons: I can give you a quotation, I think I am quoting correctly: "To attempt to preserve a patients's life at all costs may not be fully respectful of the patient. You must approach end of life decisions with a healthy realism". That was Pope John Paul II.

  Q82  Baroness McIntosh of Hudnall: As it happens that is a view that I share. What I am trying to understand is the tension that seems to me to be bedevilling the question of interest and benefit round the issue of withdrawal of treatment between the benefit of being alive and the benefit of not being alive, and that in the end is what it boils down to. I think that what you have just said clearly indicates that there are circumstances in which not being alive is preferable to being alive.

  Dr Lyons: Can I put it another way, am I intervening to prolong somebody's life or am I intervening to prolong somebody's death. Am I prolonging the process of dying? Am I helping that person? I have to make that decision day in and day out with people with advanced dementia. I follow very clear principles laid down by the British Medical Association in how I do that and I consult widely over that. That does not involve the Adults with Incapacity Act although the general principles of the Act do guide my decision-making. My decision-making would have been within those principles.

  Baroness McIntosh of Hudnall: It might be worth our while to consider what extent it is necessary to make explicit what you just said because the difference between prolonging somebody's life and somebody's death is very, very critical but it does not appear anywhere.

  Q83  Lord Rix: Would that not be for guidelines rather than the Bill?

  Dr Lyons: May I make a recommendation, my recommendation is that you do not write it explicitly into the Act, that is not what the Act is about. What is happening with this discussion is this discussion has been hijacked by that issue, the way that we almost got hijacked in the Scottish Act with that issue, so we left it out and that allowed us to concentrate on using the Act for people's benefit and leaving these difficult decisions to good practice guidelines.

  Q84  Chairman: Did you have a draft or did your Parliament go straight to the Bill? Did you have a draft Bill and then have consultation or did you go straight to the Bill?

  Dr Lyons: There was actually a lot of consultation before the draft Bill in the first place.

  Q85  Chairman: So it was a draft Bill, was it?

  Dr Lyons: Yes, but there was a draft Bill that came out of the Scottish Law Commission's original report and the document Making the Right Moves which it was eventually called.

  Q86  Chairman: Were the draft Codes of Practice circulated widely for consultation?

  Dr Lyons: Yes, and we all commented on them, ripped them to bits and they went away and thought again. I would say that the Code of Practice for medical treatment in particular in the Scottish Act has its problems. We have difficulty—and there are one or two questions in here about it—because the definition of "medical treatment" under the Scottish Act is, in my personal opinion, too broad. It is defined as "any health care procedure designed to promote or safeguard the physical or mental health of the adult", which is far too broad and it is not what the Act should be concentrating on for medical treatment which is potentially contentious longer term treatment and the acute treatments that would ordinarily require a person's written consent, so I think there is a judgment to be made there. The other big difficulty with medical treatment that this Bill has is it does not close the Bournewood gap. I am sure you are familiar with the Bournewood case. This Act excludes those covered by Part IV of the Mental Health Act. That excludes treatment for mental disorders beyond three months so if somebody is incapable of giving consent to this order you could not give them treatment for that if this Bill became an Act.

  Q87  Chairman: This is the draft Bill?

  Dr Lyons: You would have to use the Mental Health Act so all these people would be subject to the Mental Health Act and they would all need a second opinion from the Mental Health Act Commission and you would gum the entire system up and it would not work. We were close to doing that in Scotland before we drew the Scottish Executive's attention to that so I think it is only fair to draw that to your attention as well.

  Dr Bowden: I think a related point is about assessment of capacity generally across the Act. We need to look at the appropriate level and intensity of assessment of capacity really on a principle of proportionality. For minor or relatively insignificant decisions I think you are perhaps moving to the general authority to treat, and general authority is potentially there. Perhaps we have gone too far in requiring certification of Part 5 under the Scottish Act but as a psychologist I would say that where it comes to complex decision making it is crucial that a psychological opinion is coming in there in contentious and difficult cases and indeed also a speech and language therapy opinion because of the particular communication issues that can come in, and I think guidance looking at that proportionality of assessment and using the appropriate specialists to carry out these assessments and not placing that on general medical practitioners or indeed under the general authority (Jean next door) is very important.

  Q88  Baroness Fookes: As you obviously attach great importance to the codes, would it be useful for us to have a copy of these codes perhaps with a critique where you feel that they may fall short or could be improved?

  Dr Lyons: The Codes of Practice are certainly available on the web site on the Scottish Act. On the critique especially on the medical Code of Practice there is a consultation process at the moment and the responses to that will be analysed by the Central Research Unit. I am doing some research on the use of Part 5 with the University of Stirling. I think it is very important that when those reports are analysed and that research is available then we do our best to make it available to this Committee.

  Q89  Baroness Fookes: And the timescale?

  Dr Lyons: For the analysis of the responses it should be pretty soon.

  Q90  Baroness Fookes: In time for us?

  Dr Lyons: What is your timescale?

  Q91  Chairman: We have to finish all our deliberations by the end of November.

  Dr Lyons: I would be confident that the responses will be analysed before then.

  Mr Ramm: I think there are some similar discussions amongst clinical psychologists about their views in relation to the Act as well. You have to bear in mind that even for Scotland the ramifications and implications of the legislation are still only just being worked through, so it is still very new to us.

  Chairman: Sure. Thank you very much indeed. You have had the questions, we have not reached them all. If there are any questions there that you would particularly like to answer in writing that would be very helpful to us. I apologise again for all the disturbances, which were due to votes in the House of Lords mainly. Thank you very much, it has been very helpful.

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Prepared 28 November 2003