Examination of Witnesses (Questions 180-199)|
17 SEPTEMBER 2003
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
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
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
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
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
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
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"
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.