Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 180-199)



  Q180  Baroness Fookes: I have considerable sympathy with your view that the general authority is really much too general, but in addition to day-to-day decisions and emergency decisions, there is that range of major decisions which may not be emergency, but nevertheless have to be made, like a change of housing.

  Mr Broach: That is exactly right.

  Q181  Baroness Fookes: This is, I think, what you are saying. How do you think it would be possible to frame the Bill to reflect this?

  Mr Broach: Well, we have thought long and hard about this and what we have started off by trying to do was to create categories of decisions that should be excluded from the remit of the general authority. The problem with that of course is where do you draw the line and for some people decisions like that are much more significant than others. By actually setting out, for instance, where someone lives as a decision, it may be appropriate in certain circumstances, say, if a person has always lived with their family and their family moves house, you are changing the setting, but you are not changing the place that they live in terms of being in their family home, so it becomes very difficult to frame it in legislation and that is why we thought about significance and time as the two key factors which determine whether a decision under the general authority is reasonable or not. The other set of decisions we do want excluded are medical consent. We do not think that carers should be able to give decisions that amount to consent to medical treatment under the general authority and instead those decisions should be reserved to the medical practitioners, but the carers should be absolutely consulted by the medical practitioners which is the duty under the best interests.

  Q182  Baroness Fookes: All medical decisions because it might be something very minor or it might be something exceedingly major and there is a great difference?

  Mr Broach: That is right. It is consent that we have focused in on, so anything where the patient is required to give consent. It is also very important to remember that the general authority should not, must not and cannot apply to anyone who is not incapable, exactly as we were talking about in that best interests do not apply to anyone who is not incapable. Another restriction should be an absolute duty to look at whether the person has capacity and at the moment it specifically suggests that the general authority is subject to section 4, best interests, and we think that it should be subject absolutely to section 3, the presumption of capacity, and section 2, how capacity is assessed.

  Q183  Baroness Fookes: If, for example, somebody had a verruca on their foot, it is not the same as having a heart by-pass, is it?

  Mr Broach: No, absolutely. The other thing there is that the medical professionals in both of those situations would be able to take the decision because they have a duty of care and they would have a duty to consult the family that were involved if the person cannot and of course the person themselves even if they can or cannot give a decision. Our second argument is that those decisions taken under the general authority, because they have to be taken quickly, should still be lodged with the court of protection so that they are officially recorded and can be challenged at a later date.

  Q184  Mr Burstow: In the explanatory notes which you referred to just now, it gives some examples around "personal" where it might involve touching, not invasive medical intervention, but touching where consent cannot be given because the person lacks capacity. Are you saying that those are things which should not be subject to general authority, but in fact should be subject to some other process outlined elsewhere in the Bill?

  Mr Broach: We made the distinction between routine medical treatment and consent for a specific treatment which is new to that patient, so if a routine medical treatment is to be administered, then that is appropriate to be given under the general authority.

  Mr Kramer: That is making a distinction between the day-to-day care of somebody which would come under the general authority which you I think you were referring to and that would be the day-to-day work of support staff, the professional, in terms of looking after somebody who may lack capacity which would come under the general authority.

  Q185  Mr Burstow: Therefore, from the evidence that your colleagues gave yesterday, the trigger for all of this would be a care conference?

  Mr Broach: Absolutely.

  Q186  Mr Burstow: I think the concern I still have, and I have not really heard you offer any reason why I should not continue to hold this concern, is that it is the informal arrangements, the arrangements which happen now and will continue to happen probably in ignorance of the law where no such process has been gone through at all. What do you think your proposals of having a trigger mechanism will do for those people? Are you effectively, by proposing a trigger, criminalising those people who will be taking those decisions?

  Mr Broach: What we are trying to do is to expand on what "reasonable" means in the context of the general authority, so if a person was in a care home, it would be reasonable for a care conference to take place. If a person is cared for at home by their family and is not in contact with services, and this is very important for my client group because many people with autism are not in contact with any services at all, then it is reasonable for the carer to assess the person's capacity to the best of their ability, support them to make decisions, and to record that they are operating under the general authority so that if they are challenged, they can explain why they have made those decisions and in that context that would be reasonable.

  Mr Kramer: Subject to that, informal carers are making decisions every day and they are complex and multiple about washing, feeding, dressing, what to do during the day, so we are not saying that each and every decision has to be recorded and each and every decision has to be separately justified with a separate assessment of capacity for each decision, particularly where those day-to-day decisions are very extensive, but what we are saying is that we hope that what the general authority will actually do is encourage the carer to think, "Well, how can I involve the person in the decision? How can I maximise the right of the person to make the decision that they are capable of?" So, if the general authority had the proper safeguards, it actually could enhance people's rights and not take them away from them.

  Q187  Lord Rix: Did you consult with self-advocacy groups during your deliberations? They came along to your meetings.

  Mr Kramer: Some self-advocacy groups such as People First decided that they did not want to be part of the Making Decisions Alliance largely because the Making Decisions Alliance campaigns for legislation and supports in principle billing legislation and People First do not, but we have had meetings with self-advocacy groups and, only last week, the Department of Health organised a meeting which brought together a wide range of people, professionals of different organisations and self advocates to discuss the Bill. I do think it is important that the views of self advocates and carers are engaged as part of the Committee's inquiries. I think it is important to hear the views of self advocates who are supportive of legislation and those who have concerns but, in terms of our work, we have tried to involve them.

  Q188  Lord Rix: So, you think it would be advisable if we could possibly hear those witnesses?

  Mr Kramer: Yes, absolutely.

  Chairman: We are having People First, Changing Perspective and some other people as well.

  Q189  Baroness Fookes: I am not quite clear as to when you are recommending that there should be a recording of the application of general authority and when not. You have mentioned that all the multifarious small day-to-day procedure need not be the subject of formal record, so where do you draw the line?

  Mr Broach: What I think we need to come back is that anyone using the powers in this Bill should be able to justify them. So, if you are claiming protection of the general authority, you would need to be able to justify its use. That does not mean, as Richard has said already, that you have to justify that you used it on Thursday to take someone for a walk, but you would have to be able to explain why the person in your care is not able to make a decision for themselves, and then you have to be able to justify that your decisions are reasonable. So, it is about recording, to the extent that you feel necessary, information that will allow you to make that justification.

  Q190  Baroness Fookes: Normally, recording means something written.

  Mr Broach: Yes, but we are not necessarily making that argument. We are saying that the person making the decisions has a responsibility to justify that what they have done is reasonable.

  Q191  Baroness McIntosh of Hudnall: Can I just ask you whether this would be a reasonable reclassification of what you said. Given that day-to-day decision making is not practicably subject to being written down, what you would presumably be concerned about is that, in the event of a challenge, anybody who has taken a decision on behalf of somebody who lacks capacity or is alleged to lack capacity can give an account of that decision.

  Mr Broach: Absolutely.

  Q192  Baroness McIntosh of Hudnall: Therefore, the responsibility on the carer is not so much to record their decision as to be aware of what decision they are taking.

  Mr Broach: Precisely.

  Q193  Baroness McIntosh of Hudnall: And to have a reflective ability to recall it later. Is that right?

  Mr Broach: Yes and to be able to demonstrate an understanding of the principles that allow them to claim the protection of the general authority.

  Q194  Baroness Fookes: In your written evidence, you suggest that the phrase ". . . or person reasonably believed that he lacks . . ." should be omitted. Could you justify that to us.

  Mr Kramer: I think there was concern over the word "believed" because it suggests a lower threshold to reasonable grounds or reasonable judgment. So, there is a concern that the term "belief" by applying a lower threshold may mean that the need to assess capacity and support people to make decisions could be circumvented in some way. I think the term "belief" is the concern. It does not suggest an element of objectivity that is needed. One approach would be to omit the term at all and the other approach would be to bring a sense of objectivity by having reasonable grounds or reasonable judgment. We do think that "belief" has a different meaning in law.

  Q195  Baroness Fookes: If it were to be omitted, would this not leave some carers in a very precarious position legally, particularly if they took some sort of emergency action or even, as was suggested yesterday, an accident and emergency department visit?

  Mr Kramer: In terms of emergency actions by health professionals, I do not think it will affect that because a decision in an emergency would be made under a duty of care and it would be limited to interventions that will either prevent a deterioration or improve someone's health. So, I do not think that the term "reasonable belief" itself will have an impact on, say, a health professional's duty. I do not think it is the trigger point. I think a health professional will make an assessment and will make that act in their best interests. So, I do not think that the term "reasonable belief" in its omission or inclusion will actually affect that relationship.

  Q196  Baroness Fookes: No, but it could certainly affect other carers in different situations, could it not?

  Mr Broach: Our arguments on that would be that an assessment of capacity is no more than a judgment in any case and that we should be able to justify how we reach that judgment but, by including reasonable belief, it implies that in some way something else is absolute and we would take great issue with that.

  Q197  Baroness Fookes: Would you be happier if it stayed in in what I might call a "beefed-up" form?

  Mr Broach: How would it stay in in a beefed-up form?

  Q198  Baroness Fookes: As you were the one suggesting that it should be omitted, I leave you to suggest how it might remain.

  Mr Kramer: We suggest a beefed-up approach would be reasonable grounds/reasonable judgment because that is a much more objective approach than a subjective belief, so that would be an improvement in direct answer to your question.

  Q199  Baroness Fookes: Obviously I would not hold you to it right now because I am asking you to do it off the top of your heads, but something of that sort would remove both your anxieties?

  Mr Broach: It would send a clearer signal that it was not possible to use a general authority as a carte blanche which was what it was described as.

  Chairman: You can always write to us afterwards if you have any ideas.

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