Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 100-119)



  Q100  Baroness Barker: Could I probe a little more your exception to the phrase "reasonable belief"? I agree that it is a phrase which can be interpreted in two ways. One is an excuse but one is a requirement to demonstrate the basis upon which somebody believes something to be in somebody's best interest. Why do you take a negative view of that phrase?

  Ms Willmington: Because of the first interpretation and the concern that it would be used and we are concerned that people would interpret it in a way in which they could justify actions. It gives them more ability to flexibly interpret it. The problem is that capacity is only ever a question of judgment and we were concerned that because it is such a difficult thing to measure it is always a question of subjective judgment and we were concerned that, by leaving it open that way, it gave people the opportunity to interpret it very flexibly.

The Committee suspended for a division.

  Q101  Baroness Fookes: You advise that the phrase that a person reasonably believes that a person lacks capacity should be removed from the Bill. What protection would there then be for somebody acting in the best interest, say, in an accident and emergency department or some other immediate emergency?

  Ms Willmington: We thought about that issue and our feeling is that whoever was acting in that situation, if they were challenged, we would want them to be able to show what steps they took to ascertain the person's capacity, opinions, views, best personal interest etc., given the bounds of what would be reasonable to expect in that situation and also the necessity and emergency of that situation so there would be protection for that person in that situation. We would not be entirely opposed to the idea of it being amended. We are looking with the eyes of the general public as to how they would interpret that phrase, rather than it being in a person's own judgment, if they have evidence of an objective judgment, for example. I think we are completely aware that in situations of emergency and necessity people are going to have to be able to act. There will always be that justification and reason because people have to act sometimes very quickly.

  Q102  Baroness Fookes: You will surely need in that case to present us with some form of wording because I cannot quite see what would replace this, bearing in mind that I think "reasonably" does offer protection and indeed a restriction.

  Mr Foster: The difficulty that we have had with the phrase "reasonable belief" which is something that lawyers are used to is that that phrase is not necessarily so readily available to people who are not used to deciphering the language. It is very tempting to say, "I believe that I am a reasonable person and therefore it is a reasonable thing to do." It may be a semantic point but we are thinking, in terms of a form of words, about a belief based upon objective evidence or something along those lines. It is tempting to say this could be put into a code of practice. I think we are all agreed that a code will be terribly important for the nuts and bolts. I believe that we are saying this needs to be much clearer on the face of the Bill, to bring out the fact that it is not simply the subjective view of the individual; it is based upon something objective.

  Q103  Baroness Fookes: It will be others, will it not, who will judge whether the individual was acting reasonably?

  Ms Willmington: We are concerned that people do not use it to justify actions. We are trying to make sure that people interpret this Bill correctly and they do not use it to justify doing things that they should not.

  Q104  Mr Burstow: I would like to move to clause 6, the general authority, and the issues that arise out of that. We have had in submissions reference to concerns by self-advocacy groups who are worried that it is going to be difficult for people to complain if they disagree with the choice that has been made on their behalf under the general authority. We were wondering if you could say a little more about what mechanisms could be included on the face of the Bill that would enable people to challenge decisions that have been made under the general authority.

  Dr McCulloch: We welcome the principle of the general authority but at the moment, as it is couched in the Bill, it is something of a carte blanche to people, particularly in situations where they are exercising it on a continuing basis, rather than the emergency situation we have just been discussing. We would suggest that there are a number of measures that could be taken to ensure that the individuals' wishes are given more weight, so that the individual has more opportunity to challenge that authority if they feel they need to. One of them would be to have some sort of competent authority to which a person could go, or to which a concerned person could go to trigger an assessment. It might be appropriate for that authority to be a social services authority, but that is a matter for discussion. It is also important that the mechanisms set within this Bill are embedded within the real care processes that exist out there at the moment, processes like the care programme approach, the care planning, multidisciplinary team meetings and the like. Patient records, whether they are written or electronic, should be used to enable these processes to be kept track of. There are a couple of other mechanisms which would be extremely useful. One is that we are advocating the use of advance statements and that would enable someone to give a clearer, positive expression of a particular wish that could be taken account of. We are also particularly keen on the development of advocacy services. They would be very relevant in this particular situation, where someone feels that perhaps the general authority has not been exercised properly. They may not even have the words to express that in a bureaucratic or legalistic way. If they have an understanding lay advocate that they can turn to, that person can help them to access either the statutory mechanisms or the mechanisms within the NHS or local authorities to raise that issue and ask for an assessment or trigger some sort of complaints mechanism. It is about thinking through what sort of processes are needed to support the individual in the real world. I do not think we can have a general assessment of absolutely everybody by a local authority. The numbers are just too big. We have to think through what a realistic mechanism might be.

  Ms Willmington: Our vision would be one in which the general authority was placed within the existing mechanisms described so it would be discussed and reviewed regularly. The important thing about that is it is not left to the closed relationship between the carer and the individual; it is discussed as part of a multidisciplinary team meeting. People discuss their feelings about whether it is appropriate and whether they think it is being used appropriately. Obviously it is not going to be relevant for everybody because not every single person who has capacity problems is part of the single assessment process. Unfortunately, we do not have the answer to that but we feel it is one way of trying to embed it in the existing mechanisms.

  Q105  Mr Burstow: Picking up on the point about this being a question of real processes in the real world, one aspect of that might be the current no secrets guidance from the Department of Health. Would you be recommending that that would need to be redrafted and, as it stands, in terms of its implementation, does it provide an adequate framework in which the real world processes can be relied upon to pick up this sort of abuse?

  Ms Willmington: There needs to be linkage specifically with the no secrets. One of the things we suggested was a duty upon local authorities to monitor general authorities. That would be a very easy way of linking the two things.

  Ms Thompson: It is a financial point but it is an important point that we have a large number of people in care homes who, because of an accident of having more than £19,500, are funding their own care although they might lack mental capacity. On the whole, the local authority is very loath to make the arrangements for them. Therefore they do not come under care management and the Bill might help to strengthen this, if one did have that sort of linkage. There should be a duty on local authorities to keep a weather eye on some of these people who are in care homes. I understand through the National Care Standards Commission that there is an issue here. We have a large number of people who might lack mental capacity but, because the receiver has made the care arrangements with the home, they are no longer under local authority care management because they just happen to have more than £19,500.

  Q106  Baroness Fookes: I am still worried about those who are not living in care homes or any sort of residential institution. What about the person in a private home whose only contact perhaps is with a carer with the general authority with whom they disagree or want to make a complaint about? How on earth do they get to any outside body, including an advocate?

  Ms Willmington: That is when it comes down to public education. I think it is important that those mechanisms exist. I am a very strong advocate for advocacy, particularly for that scenario. In a perfect world we would be able to reach every single person, but we are living in the real world and all we can say is that it is important to have as many mechanisms as possible to try and catch as many people as possible.

  Q107  Baroness Fookes: Supposing you had a concerned neighbour who was not a carer but who was worried about what was going on next door. How would he or she tap into the system?

  Mr Evers: There are systems at the moment to do that through the no secrets guidance. Social services have a clear responsibility for the protection of individuals at home, particularly elderly people. Through that mechanism an alert could be made through social services and the system would pick up through the case review that we have already discussed.

  Mr Foster: My sympathy is with you in the way you phrase the question. I can only speak from my perspective but we are terribly concerned about those people who have lost capacity and have regained it. They are outraged at what has been done supposedly on their behalf. I do not wish to speak for the Alliance but Mind would be very pleased to see ultimately some sort of resource to a court, where appropriate. How that would work in such a way that would balance the legal flexibility and freedom of the carers to make proper decisions while not exceeding their brief is an enormously difficult matter and one that we would be happy to give a view on at some later stage, if appropriate.

  Q108  Mrs Humble: Returning to your comment about any system being placed in the real world, one reality now is that many especially older people, people with disabilities, have direct payments and employ their own carers directly. People with their own resources have been able to do that for many years. Given that the relationship of the carer to the individual being cared for is one of employer and employee, how do you see that fitting into these proposals? Do you have any comments on that situation?

  Ms Willmington: One of my understandings is that somebody who at the moment experiences direct payments has to have full capacity. What could happen is that a carer or somebody else in the family could go through the direct payments process on their behalf. My sense is that that probably would not be a direct problem in terms of the Bill. If somebody who lacked capacity did have direct payments, there would probably be at least one other significant person who would, I imagine, have one of the mechanisms within this Bill that they would be acting under.

  Q109  Mrs Humble: That would also cover somebody who might have capacity when they started in the system but who may lose capacity later and they could then enter into arrangements that are elsewhere in this Bill?

  Ms Willmington: The reality with direct payments is that although social services are not directly providing the service, they still have a duty to review. At some point they would be looking at the mechanisms within the Bill.

  Ms Thompson: You have to have the capacity to manage direct payments yourself or with help. Social services are still responsible for the care that that person gets and because they are making payments for that person they have to make sure they are being spent giving them the care they need.

  Q110  Baroness Knight of Collingtree: Ms Willmington said something a short while ago which I thought displayed a very touching faith in the ability of local authorities. She said that local authorities could be made to oversee the decisions, as it were. I do not know whether I am getting cynical but in my experience in recent years it has been increasingly difficult for the local authorities to deal competently with all the care problems they have with children and certainly with elderly people in their areas. I cannot quite see how it is going to be feasible to put another load on them and how would you think they would be able to cope if they had one?

  Ms Willmington: They will probably give evidence on their own behalf. My belief is that they are dealing with the problems that the lack of this Bill causes. From their point of view, they would probably be very relieved that for the first time there are mechanisms they can use to help them do their jobs professionally. I would hope that they would positively welcome this as a way to help them ease their workload in a very positive way.

  Ms Thompson: Local authorities already have the lead on No Secrets, so they should have the mechanisms set up. We would like to see more clearly how they are working.

  Q111  Baroness Knight of Collingtree: There is nothing else you would feel that they would have to have at their fingertips in order for them to take on these extra duties?

  Mr Evers: They would certainly need to have a clear understanding of the mechanism of this Bill. There is a significant public and professional education job to do on how this will work and we may come to that later on, but that is crucial.

  Q112  Lord Rix: This question really should be addressed to the witnesses tomorrow but people with learning disability and self-advocate groups are very suspicious of the professionals representing them, the parents representing them, the carers representing them and this Bill in particular. Does the same apply to self-advocates with mental illness, say?

  Dr McCulloch: I think it does. I fear that that is partly due to the context of this Bill, coming as it does after the proposals on mental health which have been greeted with almost universal dismay by patients, users, professionals and voluntary organisations. That is rather an unfortunate context, where there has been an opportunity to debate it in detail and where service users who are working with the Mental Health Foundation, some of whom are particularly interested in the issue of advance statements, see this Bill as an opportunity to enhance their rights and enhance the ability for self-representation. Some mention of advocacy on the face of the Bill and a commitment of resources by government for advocacy would go a massive way to reassure service users that government is serious about enhancing people's rights, rather than taking rights away. I think the door is very much more open on the Incapacity Bill than it is on the Mental Health Bill. There is a need to put some clear blue water between what is happening here and a debate on mental health. Support for advocacy would be a very strong way to do that. I do not know if that makes any sense.

  Q113  Lord Rix: Absolutely. What are the chances, do you think, of us increasing the availability of advocacy or self-advocacy?

  Ms Willmington: It is something that I would like to see happen. Everybody is campaigning for it. I do not think there is a need for this to be separate from advocacy generally. Obviously people will need special training but there is not a need for a specialist advocacy service. If possible, we would like to see local authorities having a duty to provide an independent advocacy service as a right. Not all local authorities would have to start from scratch with that. Some of them would be able to use existing advocacy services. It is not as huge as some people perceive. You may think I am going back to semantics again but another thing is the very title of the Bill. We think people would feel much more positively about it if it was the Mental Capacity Bill, because that seems to reflect the principle of supporting decisions, rather than the Mental Incapacity Bill, which seems to be more about presuming incapacity.

  Q114  Chairman: Should local authorities be provided with specific powers to investigate allegations of abuse and to provide protection for vulnerable people, which I believe was originally suggested in the Law Commission's report?

  Mr Foster: Yes.

  Q115  Mr Burstow: I wanted to pick up on the point about some of the ways in which the Bill talks about people who lack capacity and some of the assumptions. Could you develop a little the point made in the MDA submission about, rather than assuming that the general authority is triggered, that it is just there and available to be used, that instead it should be triggered in some way? Can you explain to us how you would envisage it being triggered and what the mechanism would be to enable that to happen? Are there any other restrictions that you feel should be placed on the general authority?

  Ms Willmington: We feel the triggering should be part of a case conference or review discussion. Rather than one person making that decision, it is recorded in a multidisciplinary way and that gives the opportunity for people to challenge it and to be aware that it is happening. We feel quite strongly that certain decisions are not appropriate to be made under the general authority, really serious, life changing decisions. There are not sufficient safeguards within this. One decision can potentially change somebody's life. We felt decisions about where you live, about significant changes to your care, financial decisions of any magnitude should be excluded from the general authority. Carers and family friends should not be allowed to consent to medical treatment. Doctors should be able to do that but with additional safeguards. If they are consenting to medical treatment, it should be part of a clinical decision and they should have a duty to consult families and friends. If they cannot get consent doing that, they should have recourse to go for a second medical opinion and, if not, there should be a case for protection.

  Q116  Mr Burstow: In the scenario you have just described, some might be concerned that one of the consequences is that in situations of urgency and emergency decisions do not get taken at the speed necessary to save life.

  Ms Willmington: I am very pleased that you have brought up that point. I meant to add that we felt there would be a clause so that in emergencies people could act and they would not need to go through that process. Obviously there would have to be a balance between the emergency of the situation and whether that would be appropriate.

  Mr Foster: What I am picking up is that the honourable members of the Committee are as concerned about the general authority as we are. On the one hand, we think it is a very valuable thing. Frankly, people have been making decisions on behalf of somebody without capacity without any legal framework or justification going back as far as whenever. At least it is regularised and people should know what the limits are. On the other hand, it is enormously difficult to regulate and preserve the flexibility that is necessary. I think the questions that have been raised are very serious and very important and valuable. As I think you were suggesting, an awful lot of people are incapacitated. A decision needs to be taken rather quickly: here is somebody who is not currently in contact with the authorities of whatever sort and it cannot reasonably be left. It is highly desirable that it should be triggered by a conference, wherever possible. Then it can be looked at in a regularised way, rather than letting somebody do their own thing.

  Q117  Mr Burstow: With regard to workload and the capacity of the authorities to take this on, in terms of case conferences, you are presumably describing an additional task, because there will be many cases where decisions have to be made under the general authority that would not have ever come to a case conference under current arrangements. Do you really think there is the additional capacity? I know from my own constituency mail bag that case conferences get cancelled or never quite happen or not everyone is there, but the decision can take place through such a forum.

  Ms Willmington: If this is one way of necessitating case conferences happening, it is another inadvertent benefit of the Bill. The alternative is that people just have these decisions made for them. They have no opportunity to challenge them or discuss them. It is very much in closed situations rather than in these multidisciplinary ways, where you get other people prepared to speak or challenge them. That is a very positive thing.

  Q118  Lord Pearson of Rannoch: When you envisage these conferences with professionals and so on, they are speaking on behalf of the intellectually disabled and people with severe learning disabilities and not so much on behalf of the mental illness group or elderly people who become mentally incapacitated. Where do you see the wishes of the family in all this, particularly the family carers who may have been looking after some of these people for a very long time and who just may know them better than the whole case conference put together? Where do you see the influence?

  Ms Willmington: It is central. That is one of our reasons for having a case conference, so that it can involve anybody who has something to contribute and so that decisions are made which do include those sorts of discussions.

  Mr Foster: This goes back to the earlier question about where is the focus and the best interest and indeed is it on the individual.

  Q119  Lord Rix: Surely parents and carers are generally included in all case conferences?

  Ms Willmington: Clive is nodding his head here!

  Mr Evers: Shaking it!

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