Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

7.Memorandum from the British Psychological Society (MIB 817)

  The British Psychological Society (BPS) is happy both to offer written evidence to the Joint Committee scrutinising the Draft Mental Incapacity Bill, 2003 (Cm 5859) and to comment on the process of consultation as detailed in the Press Notice of 17 July 2003. Our comments on the substance of the Draft Bill are enclosed.

  In respect to the process of consultation, the BPS strongly welcomes the open process of scrutiny and particularly welcomes the opportunity to present written and oral evidence to a Bill Scrutiny Committee. We strongly welcome this development in the legislative process.

  In respect to the particular questions related to process posed in the Press Notice of 17 July 2003, the BPS welcomes the consultation process preceding the publication of the Draft Bill. As above, we believe that open debate will strengthen the resulting legislation.

  We have only two reservations in respect to the process of consultation. First, we note as a Society that the psychological contribution to this area is under-represented. We feel that psychologists have a wealth of expertise emanating from both research and clinical practice in the field of mental health and incapacity that could be used to improve the legislation.

  Second, the time scale from publication of a Draft Bill to the requirement of written evidence and the timetabling of oral evidence sessions has been tight. The BPS welcomes the request for involvement and recognises the need to pass legislation more rapidly given the pace of medical advancements. The BPS, like other learned societies, relies in such circumstances on professional members who are employed full-time by the NHS and Universities. Finding time at short notice for preparing written evidence to a short timescale can be difficult, especially during the summer months.

  The BPS is a UK-wide body, and we are strongly represented in Scotland, where our members have been closely involved in the Adults with Incapacity (Scotland) Act both during its drafting and now in its implementation. The BPS believes that the Scottish legislation has many advantages over the Draft Bill. We understand that the Joint Committee intends to invite representation from our colleagues in Scotland. Such compatibility across the UK is, we believe, particularly important in the context of Human Rights legislation.

  Please find enclosed our formal submission of written evidence to the Joint Committee on the substance of the Draft Bill. We would, of course, expect to expand on these points in oral evidence.

  If there is further material that we can offer to support the Joint Committee, the Clerks or the Department for Constitutional Affairs in this or other matters, please do not hesitate to get in touch.

  With over 36,000 members, the British Psychological Society (BPS) is the representative body for psychologists and psychology in the UK. Its Royal Charter charges the Society with national responsibility for the development, promotion and application of psychology for the public good.

  The BPS welcomes the publication of a Draft Mental Incapacity Bill. We strongly support the intention to address the needs and rights of vulnerable adults and their carers. However, the BPS believes that changes to the Draft Bill are necessary.

  The BPS acknowledges the request to present both written and oral evidence to the Joint Committee as recognition of the scientific knowledge base and practical expertise of psychology. Chartered Psychologists with specialist expertise of working with clinical populations are trained to assess competence in decision-making ability. Our comments are intended to advance two broad aims: to assist in the effective implementation of the Bill, a Bill whose policy intentions we support, and to encourage a coherent and psychologically informed approach to mental health legislation.

  We welcome the opportunity to elaborate on all these points (necessarily brief here) in oral evidence. We would particularly appreciate the opportunity to elaborate on Items marked †.


  The BPS recognises that the Draft Mental Incapacity Bill legitimises the allocation of decision making authority to proxies following an assessment of the mental capacity of the individual. This means that the expert assessment of capacity is particularly important: serving as it does the dual goals of protecting the autonomy of individuals who retain capacity and protecting vulnerable people who do not.


  The BPS welcomed the statement of principle included in the Draft Mental Health Bill (Cm 5538, Part 1 Section 1 subsection 3). We recommend the inclusion of a similarly binding statement of principles in the Draft Mental Incapacity Bill.

  The BPS also supports the basic principle of law that people who are able to make appropriate decisions for themselves should be legally entitled to have these decisions honoured. Conversely, we believe that legislation such as the Mental Health Act and the Mental Incapacity Act should apply only if people are not so able to make decisions for themselves.


  We recognise that it is legitimate to separate the provisions of the Draft Mental Incapacity Bill from the provisions of the Draft Mental Health Bill. We recognise that the Bills address different needs and that people may require the provisions of the Bills under different circumstances. We further recognise that the criteria for application of the provisions of the Bills will be different.

  Specifically, the BPS welcomes the definition of capacity used in the Draft Mental Incapacity Bill. In the context of the principles outlined above, the BPS has recommended that the Draft Mental Health Bill includes a criterion of "impaired judgment" (a position shared by many other interested parties). The BPS therefore believes that care must be taken to ensure proper coherence between the two Bills, and that there should be clarity about the boundaries and overlap between the two pieces of legislation.


  The BPS recommends that the Bill should make reference to the need for an operational definition of incapacity to be developed within the Code of Practice. The BPS supports the adoption of the "functional approach" when determining capacity. This is consistent with current practice based on the research evidence derived from scientific studies of psychological functioning and has long been a recognised method used by Chartered Psychologists working with clinical populations.

  Such an approach ensures that account can be taken of additional factors not necessarily arising from organic impairment. The BPS notes that in the recent Masterman-Lister case the role of psychological factors was highly relevant. These include cognitive differences that may arise from educational factors, the influence of general environmental circumstances, as well as cultural, social, and personal beliefs and values that may impact on decision-making competence and on the consequences of decisions made. In addition, specialist assessment of cognitive functioning may be needed, for example where there is communication difficulty because of physical or language impairment or where there is or may be impairments of reasoning, attention or memory.


  The BPS welcomes the introduction of a structured approach to the management of issues relating to incapacity. We recognise the need for legislation that incorporates both General Powers and specific powers such as Lasting Powers of Attorney.

  The BPS, however, believes that the Bill as drafted lacks necessary specificity in the assessment and determination of incapacity. We welcome the definition of incapacity enshrined in the Draft Bill. At present, however, the Draft Bill lacks a robust, transparent and practical system for determining if, and when, the criteria for incapacity within the terms of the Bill have been met.

  The BPS believes that the Bill would benefit from the introduction of a formal process of Registration. We believe that this would better meet the identified aims of protecting vulnerable people and their carers. It would also be more consistent with the Scottish Incapacity Act.

  To ensure adequate safeguards and to promote the least restrictive approach, the BPS recommends a hierarchy of decision-making authority, specified in a code of practice. This will ensure that adequate account is taken of potential fluctuations in decision-making capacity, as well as reflect the diversity and complexity of decision-making ability across the domains of health, welfare and finance.

 (a)   General Authority

  General Authority would allow family, care staff and professionals to provide routine care; taking account of the overall best interests of the individual, and based upon current healthcare opinion arrived at in good faith. This would allow family members, care staff, and other professionals to make routine day-to-day decisions for an adult with impaired decision-making capacity, for example, for a person with severe dementia or severe learning disabilities, without having to be concerned that they were acting illegally. In most cases this would be uncontroversial and would address all routine care and placement issues. In order to promote joint working among care providers and other professionals, however, a formal care plan should be compulsory.

  If, however, a major decision needed to be taken concerning the person's health, personal welfare, or finances that went beyond routine care, if there was a significant change in the individual's circumstances, or if there was a serious or life threatening condition, the BPS recommends that the Draft Mental Incapacity Bill introduce a system for formal Registration of the patient with the Public Guardian.

 (b)   Formal Registration

  The BPS recommends that the Code of Practice specify the circumstances in which a formal application is required. These would, we recommend, include:

    —  need for treatment of a serious or life threatening condition (eg refusal to receive insulin medication in diabetes)

    —  cessation of such treatment

    —  unresolved conflicts regarding the best interests of the individual

    —  "do not resuscitate" orders

    —  the enactment of Lasting Powers of Attorney

    —  or otherwise where there is an additional or significant change in the circumstances of the individual.

  Examples of this process might be:

    An adult with learning disabilities cared for successfully within a community setting using General Powers inherits £500,000. It may then be appropriate to Register the individual in order to ensure not only the protection of their financial interests but also to safeguard the care staff from allegations of improper conduct in relation to the substantial sum.

    An Adult with dementia might be faced with serious and life-changing medical decisions. Registration of that person with the Public Guardian would likewise protect the carers from criticism in relation to such decisions.

    Finally, a person may make a Lasting Power of Attorney giving financial control of their estate to a relative. It would be reasonable to Register the actual implementation of such control with the Public Guardian to ensure that, as presumed, the person involved indeed cannot legally retain financial decision-making powers.

  The process of Registration would also be appropriate where there is uncertainty as to the exact status of an individual, for example, where a person in the early and confused stages of recovery from a brain injury who is having difficulty understanding the treatment and rehabilitation options available and is refusing what is being recommended. In many cases it is clear whether or not the individual has retained capacity, but where this in not obvious or is contested then an assessment as part of the process of Registration would address this issue. Consideration should, however, also be given to the process of the lifting of Registration, in cases where capacity may fluctuate or where an individual is likely to regain capacity.

  Care should also be taken to ensure that, in line with the functional approach, capacity is not seen as an all or none phenomenon. People may be unable to make decisions about issues such as disposal of assets, but be able to live independently for example. This means that the process of assessment and Registration will need to incorporate single assessments by single practitioners in some cases, but more complex and multiple assessments in cases where the decision is complex or difficult.

  The BPS recommends that the formal process of Registration designates a specific person (or persons) as the carer(s) of the patient. The nature of the decisions requiring the powers of the Incapacity Act—financial or practical arrangements for instance—should be clearly specified. The Registered Practitioner should, we recommend, also be given specific responsibilities regularly to check the welfare of the individual and that the carer has not taken actions that lie beyond the issues originally attested to.


  Registration of a person with the Public Guardian as detailed above, should occur on the basis of the written evidence of two Registered Practitioners. These would be senior practitioners falling within a description specified by the appropriate Minister in regulations.

  Chartered Psychologists with appropriate competencies, experience and seniority would clearly be appropriate for such a role (especially for more complex and sensitive issues). The BPS believes that to obtain reliable and valid assessments there must be additional appropriate training for all registered practitioners.


  The BPS supports the inclusion of advance decisions in the Draft Bill. However we recognise that these issues are highly complex.

  The BPS remains concerned about people whose capacity fluctuates or where decisions need to be made during a period of slow recovery of capacity. Precipitate and irrevocable decisions about incapacity may therefore be invalid. Formal processes of Registration may address this issue if such processes incorporate regular review, oversight and specificity of planned actions or decisions.

  Recent research indicates that people who have previously expressed a desire to end their lives in circumstances relevant to the use of the Incapacity Act are later grateful that they remain alive. A simple "balance of probabilities" model for adjudications (Part 1 Section 3 subsection 2) may be inappropriate. Consideration should be given to a weighted approach, safeguarding against taking irrevocable decisions.

  The BPS therefore recommends that Registered Practitioners (referred to above) be called upon to assist individuals in drawing up advance decisions. Chartered Psychologists will have particular expertise here. The BPS also recommends that the Draft Bill includes a clause making it a criminal offence to ignore or destroy an advance decisions. Finally, we recommend that the Draft Bill further clarifies the form of advance decisions and the processes by which they are drawn up, recorded and stored.


  The BPS believes that Lord Chancellor's visitors have an important role to play. In particular, Visitors may have an important role in the process of Registration if the issues raised are particularly complex or involve controversial interventions or disputes. Chartered Psychologists may have particular expertise in this area, but are clearly not "medical" practitioners and as drafted, the Bill (Part 2 Section 49 subsection 2 paragraphs a and b) would exclude Chartered Psychologists from the category of Medical Visitor. The BPS recommends that a third category of Lord Chancellor's Visitors be created, that of Expert Visitors, in which psychology would be included along with other professions including the law. We further propose that the power to call for reports given to Medical Visitors (Part 2 Section 39) be extended to such Expert Visitors.


  The BPS supports the "best interests" criterion but emphasises the need to enshrine in law (in line with the Scottish Incapacity Act) the importance of the psychosocial aspects of a person's life, in addition to medical matters. This would entail assessing the social, psychological, cultural and spiritual aspects of the decisions at issue. Individual beliefs, values and social circumstances should also be taken into account. Again, the precedent of the Masterman-Lister case is relevant here, where the role of psychological factors was considered highly relevant.


  The BPS recommends that the new Commission for Mental Health (proposed in the Draft Mental Health Bill) should be renamed, and should oversee the proper enactment of both the Incapacity and Mental Health legislation.


  The BPS broadly welcomes the definitions and processes in the Adults with Incapacity (Scotland) Act. Our colleagues in Scotland have considerable experience in that respect, which will prove useful in respect to the present Draft Bill.


  The proposals in the Draft Bill, and those recommended by the BPS, will require additional resources for initial and ongoing training in assessment, intervention and monitored practice. The objectives of the Draft Bill will be best met if public funding is made available for remuneration for practitioners and Legal Aid for the person without capacity, or their representative. Fees guidance will be required, as will guidance on the length of time needed for proper assessment.


  The BPS believes that further consideration should be given to a number of further issues:

  The BPS remains concerned that the definition of incapacity in Section 2 of the Draft Bill does not fully recognise those people who have communication or memory problems but who function well with appropriate support aids. This may necessitate proper assessment (including clinical neuropsychological assessment) and the use of memory and communication aids and/or interpreters for those who appear to have difficulties in making decisions but in fact are capable given the right level of assistance. The BPS recommends that Section 2 subsection 3 of the Draft Bill be strengthened in this respect.

  The BPS is concerned by the term "any form of care" in Part 1 Section 6 subsection 1. This appears imprecise. The BPS recommends that this be reworded as "It is lawful for a person when caring for an individual". It may be unnecessary, here, to introduce the reference of "P", when the pronoun "he" is used previously.

  The BPS notes a contradiction in drafting between Part 1 Section 17( c) and Part 1 Section 20 (2a).

  The BPS remains concerned about the impact on individual cases of the excluded groups of decision making (Part 1 Section 26).

  The BPS is concerned over the specific relationship proposed between the Draft Mental Incapacity Bill and the Mental Health Act 1983 (Part 1 Section 27).

  The Draft Bill should include a system for informal disputes resolution.

August 2003

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