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
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
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
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
cessation of such treatment
unresolved conflicts regarding the
best interests of the individual
"do not resuscitate" orders
the enactment of Lasting Powers of
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
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 Actfinancial or practical
arrangements for instanceshould 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
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.
7. ADVANCE DECISIONS
The BPS supports the inclusion of advance decisions
in the Draft Bill. However we recognise that these issues are
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
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.
8. LORD CHANCELLOR'S
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
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