Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 282-299)


8 OCTOBER 2003

  Q282  Chairman: Thank you all for attending. I think you heard the announcement I made to the previous witnesses, would you be kind enough to introduce yourselves briefly.


  Professor Murphy: I am Professor Glynis Murphy, Professor of Clinical Psychology and Learning Disability at the Tizard Centre.

  Dr Ehlert: I am Karen Ehlert, I am from the British Psychological Society and I am the Honorary Secretary of the Division of Clinical Psychology.

  Dr Kinderman: I am Dr Peter Kinderman Reader in Clinical Psychology at the University of Liverpool. I Chair the British Psychological Society's Working Group on Mental Health Law Reform.

  Dr Dooley: I am Dr Catherine Dooley, I am a Consultant Clinician Psychologist working with older people in South London. I am also the Clinical Convener for the BPS Group developing professional guidelines on the assessment of capacity for psychologists.

  Dr Zigmond: I am Tony Zigmond, a consultant psychiatrist in Leeds. All my patients are currently detained under the Mental Health Act. I am the Mental Health Law Reform lead for the Royal College of Psychiatrists.

  Dr Herbert: I am Camilla Herbert, I am Chair of the Division for Neuropsychology in the British Psychological Society and I work in brain injury rehabilitation.

  Q283  Chairman: If I can start, as you know the draft Bill will put into the statute a number of principles that are already in the common law but it also establishes a new system relating to substitute decision making. In your view does the draft Bill go far enough to improve the decision-making process for professionals, families and carers and those who are unable to make decisions for themselves? Does the draft Bill place enough emphasis on the need to facilitate communication by people with incapacity?

  Dr Kinderman: Broadly, yes. Like everyone else we welcome the Bill. We think in its basic structure it is very good. We obviously have some concerns, you have had some written submissions about some of the concerns we have. With respect to making and communicating decisions one of the things that we generally believe is there exist quite a few codes of practice, especially the British Medical Association's code of practice drawn up with the Law Society. If the Bill were to make reference to a code of practice which enshrined those principles then broadly the Bill would meet many of the requirements that we have.

  Q284  Chairman: Are you saying that the principles should be in the code of practice?

  Dr Kinderman: You asked me in the second question about the draft Bill placing emphasis on the need to facilitate communication. In that respect, the guidelines drawn up by the British Medical Association and the Law Society are very good. If reference to them are made in the Bill then yes the Bill has many of the attributes we would want in it.

  Professor Murphy: We would also like to see a statement of principle at the beginning of the Bill, much like in the Scottish Act: "All decisions made on behalf of an adult with impaired capacity should benefit the adult and take account of the adult's wishes if these can be ascertained, take account of the views of relevant others . . . restrict the adult's freedom as little as possible . . . and encourage the adult to use existing skills or develop new skills", and that would include communication skills.

  Q285  Chairman: You do not see any conflict if the principles are on the face of the Bill and the functional approach that is in the rest of the Bill?

  Dr Ehlert: Not at all.

  Q286  Chairman: You do not see any conflict?

  Professor Murphy: I do not believe those principles will conflict.

  Dr Zigmond: One of the advantages and disadvantages of putting things in statute is that it improves clarity but of course it makes the boundaries much more certain. There are certain areas where it seems to us that there may be some difficulties, and if I can very briefly mention three: One would be patients who wander, not particularly trying to get somewhere but they wander. What happens if the nurse keeps directing them? As you know at the moment there are many examples where doors have two handles or some other system which in some ways does restrict a person's movement. The way that it is expressed at moment it is unclear as to how that would be dealt with. A second would be bathing, somebody who just pushes everybody away all of the time, what does one do about that basic care? Is that prevented by this Bill with the wording it has now or is it not? A final example relates to an area of difficulty which is where one is treating people for a physical disorder but they suffer from incapacity. Supposing one has a patient with mild heart failure or who needs antibiotics and they are just pushing people away where would the authority be or would it not be and can one then revert to common law to give that treatment? It is those sort of areas where there are some concerns.

  Chairman: What I would like to do now, as we did with the previous witnesses, is to bring up the questions on research. I think you yourselves and the previous witnesses are particularly expert in this area.

  Q287  Jim Dowd: My powers of observation would indicate most of you were sitting in the back rows when I asked the questions earlier so I will not go through them in the same detail. What provision should we have in this Bill regarding the involvement of incapacitated adults in research?

  Dr Zigmond: I think from the point of view of psychiatrists we take a slightly different view from that which I heard the British Medical Association express. We put a lot of faith in ethics committees, we suspect they need considerably more guidance, which we would want in a code of practice. We have some difficulty with the overall notion that there should never be substitute decision-making. Ethics committees may well decide that a piece of research is very proper and yet I as an individual may say that I want no part in it. I think there probably ought to be a distinction between those types of research, and clearly the research is essential, where there is the ability for substitute decision-making compared to that where there is not. If I can give you an example, if one is doing research over a long period of time perhaps relating to a particular form of learning disability then there should be no difficulty in terms of time anyway in having somebody authorised who would be looking at it from the point of view of the incapacitated individual, even having got an okay, as it were, from a research ethics committee, and I will come back to that. If one was doing research on investigating different treatments within the first hour of admission for people who suffered a head injury one could not then do that research if it introduced substitute decision making because there would be no mechanism for doing that. We thought about how to bring these together, and I am grateful to one of my colleagues here, one option would be, again it would be in the guidance for the research committee, they would have to consider whether or not as part of the protocol for the research there was a requirement for substitute decision-making and the code would give guidance as to how they would come to that decision.

  Dr Kinderman: To follow up on that, the answer to the first question is, yes, the Bill should give consideration to the role of research and how people give consent for research. Like Tony we do have some concerns about the idea of having blanket decision making available for everybody. The third point which Tony alluded to is one of the mechanisms. We generally like the role of local research ethics committees and we think they are quite strong and quite powerful bodies that do legitimately constrain research. The way that the legislation could possibly work would be to give guidance to ethics committees on how they offer approval or guide development of the protocols put before them rather than legislate for specific research and take specific actions.

  Q288  Chairman: Would they then need to refer to the code?

  Dr Kinderman: Yes.

  Q289  Chairman: You would do that. There would be some sort of provision in the Bill and some sort of code.

  Dr Kinderman: If the Bill were to a refer to the need to follow proper procedures in obtaining consent for research and were to refer to the idea that local research ethics committees can give due consideration to the Incapacity Act that would defer the responsibility to the ethics committee not to the researcher. I cannot speak for Tony but I regard local research ethics committees as well constituted, potent bodies.

  Q290  Jim Dowd: You covered nearly all of the ground in the series of questions which I had. Research can benefit the individual although in a general sense it is looking further down the track to help others, are you satisfied that we can sufficiently safeguard the individual, let me use the case of those with Alzheimer's, from being exploited in the pursuit of research which is not connected with any research itself of the kind?

  Dr Kinderman: My initial response to that is I think local research ethics committees do a good job of   protecting research participants against exploitation. At the moment the whole purpose of this Bill is to plug a gap in legislature. I think the structures allow local research ethics committees to address that issue, specifically with respect to incapacity and give people the power they need. Most of my salaried work is doing research on people who have questions of capacity under the Mental Health Act and I think local research ethics committees do a very good job balancing the risks and benefits for those individuals because there are good laws behind them.

  Q291  Baroness McIntosh of Hudnall: Can I ask you the same question I asked your British Medical Association colleagues which is about the state of research at the moment and in what way. Including provisions for research within the confines of this Bill will create opportunities or improvements that you do not currently see available? What are the inhibitions to research being carried out now? Dr Kinderman you said you are engaged in research, you are already plugged into your local research ethics committee, you have presumably already presented them with opportunities to consider issues of the kind that would arise. If research were included in the Bill, what is going to get better?

  Dr Zigmond: I think many research ethics committees quite properly are very perturbed about this area. I think they are more reluctant to give approval than they would do if there was a clear framework within which they could operate. In fact one of the reasons why I came down to the decision that in many circumstances a research ethics committee should require a substitute decision-maker is again because of the confidence that it would give them that this was being done where the balance between what should be extremely minimal risks for the individual who is not able to consent and the potential benefits either for that patient or at least for those with similar conditions is clear. It is really a feeling that this would enable research ethics committee to be more willing to grant permission because of the safeguards. At the moment people are just not sure whether they can or not.

  Professor Murphy: Perhaps I can add to that, I know a number of research projects that have been posed in London which were turned down because of the nervousness of ethics committees, especially where it was a sensitive topic such as sexuality. I myself had a great deal of difficultly getting projects through ethics committee that related to providing treatment for men with learning disabilities who committed sex offences. It seemed to me blindingly obvious that somebody should have tried some kind of framework. I think the ethics committee were opposed partly because they were sex offenders and partly because they were men with learning disabilities. They were a bit unclear about exactly how procedures for consent should take place and whether they were sufficient, and so on. I think this will make it all much clearer.

  Q292  Stephen Hesford: I want to focus on Clause 27, if I may. Clause 27 in a way works forward and works backward. It works forward in the sense of how does the Mental Health Act relate to this Bill and it works backward in the sense of how does this Bill relate to the mental health legislation. It is that forward and backward relationship that I want to explore. Is there an overlap? Should there be an overlap between this Bill and either the Act or any new form of mental health legislation? If there should be an overlap what should that overlap be? Does Clause 27 adequately express the relationship?

  Dr Zigmond: First of all there is bound to be an overlap because within the definition of mental disorder both in the code and the Mental Health Act and the proposed Mental Health Bill almost any common conditions that lead to incapacity are included.

  Q293  Chairman: When you say the Mental Health Bill, do you mean the draft Bill?

  Dr Zigmond: The draft Bill to come. The draft Mental Health Bill rather than this Bill. The first thing is many patients could be subject to both. The second thing is that as I understand Clause 27 (I think I did not understand it to start with it let me add) I think it is only referring to those people who are currently detained under the Mental Health Act, it is not talking about those treatments which are covered by the Mental Health Act or patients who are not detained under the Mental Health Act. My reason for saying that is that first of all it says in Clause 27 if the giving of the treatment to a patient is regulated unless they are detained under the Mental Health Act it is not regulated by part four. The second reason for saying that is that part four of the Mental Health Act includes not only those treatments which people commonly talk about with  concern such as ECT and medication but also   includes nursing care, habilitation and rehabilitation. If it is not referring to only those detained then any nursing care, for anybody who requires it for incapacity would have to come under the Mental Health Act, that is clearly nonsense. The problem then is for many people, professionals, there may be almost a choice as to which act to use. Let me give you an example of some of the difficulties we think that may present. In this Mental Incapacity Bill there is regulation and authority given both for advance statements and lasting power of attorney. If you ended up under the auspices of this Bill then those would be honoured. If you ended up under the auspices of the current Mental Health Act or the draft Mental Health Bill they would not be honoured. That seems to us to put professionals in a very difficult position and to be frankly a nonsense in relation to patient care. I think the second bit that is important in relation to this is the protections that are built into the Mental Health Act which are not built into this. There is a later question about Bournewood, I do not know whether you wish me to go into that now.

  Q294  Chairman: If you would.

  Dr Zigmond: Bournewood related to the admission of a patient to hospital but also to his treatment. To separate the two is in fact very difficult, admission includes treatment and related to specific treatments. The Mental Health Act it seems to me gives three particular protections, it protects people because they have a right of appeal, it protects people because of a system for second opinions, statutory second opinions where the doctor is not choosing which other doctor to go to give a second opinion, and in some circumstances it is not only a medical second opinion. Thirdly in terms of the inspectorate in the form of the Mental Health Act Commission. This Incapacity Bill certainly puts in if not a right of appeal then a system for dispute, which I will call a right of appeal. It puts in some inspectorates but there are questions about how far that goes. It has no system for second opinions. Patients who for example are in a nursing home and require treatment, medication for their mental disorder would continue to get it. According to this Incapacity Bill if patients continue to be compliant they could be given the ECT without the use of the Mental Health Act or any of the protections which Lord Stein said were missing. If one looks at the draft Mental Health Bill, the new proposed Bill chapter five in there addresses some of these issues only for patients in hospital, not for patients either in nursing homes or in the community. There continues to be very big omissions in our view.

  Q295  Stephen Hesford: Dr Kinderman wanted to say something.

  Dr Kinderman: You mentioned forwards and backwards in terms of the relationship between the two Bills. There are specifics and generalities. Tony has talked about one of the specifics, which are that weaknesses need to be tidied up. There is also an issue that both the Royal College of Psychiatrists and the British Psychological Society have about relationships between the two Bills. Although they deal with overlapping areas of mental health, and they both deal with proxy policy decision-making there are many quasi medical decisions made on behalf of patients who cannot make decisions for themselves, we both have concerns about that. One of the things we like about this Bill is it essentially validate people's decisions made when capable. It says that the junction between allowing somebody to make a decision for themselves and stepping into to making a decision for them is based on incapacity. We are concerned that the basis of the Mental Health Bill it effectively the same issues, so in the feed forward and the feedback between the two bills there is a disparity in approach taken in the two bills. On balance although the specifics of this Bill need to be looked at the approach of validating the consensual wishes of somebody who is incapable of making decisions is one that we approve of.

  Q296  Stephen Hesford: As I recall it the two bills in Scotland do a similar job, they both contain the same set of principles so they are not necessarily parallel but separate. Are you saying that something ought to be done either to this Bill or outside this Committee something to the draft Mental Health bill, and if so what is it, to make the relationship more symbiotic from a practitioner's point of view?

  Dr Kinderman: There are three elements to that, the first answer is yes. The second answer is in part it does relate to the Mental Health Bill but in part it relates to the statements of principle, which are certainly ones that we at the Psychological Society believe. We believe that the law should rule that if people are able to make decisions for themselves unimpaired by mental illness in the case of the Mental Health Act or unimpaired by mental incapacity of the sort of conditions we are talking about for the Mental Incapacity Act they should be allowed to do that. One of the differences between the Bills is that this Bill is welcome. If people really are unable to make decisions for themselves somebody has to make the decision for them and we will clarify the law on that point. One of the difficulties of the Mental Health Bill and one that concerns us and the Royal College of Psychiatrists is that it takes a different approach to the question of whether the law can intervene in people's lives.

  Q297  Stephen Hesford: In terms of Clause 27 what would you do, if anything, because I have not heard anything, that would address any of the issues that we have been speaking about?

  Dr Zigmond: Let us try and be specific in relation to the general authority. One of the questions that you have asked is, what should be excluded? What should not be covered by the general authority? That is for discussion. If I can give you some examples, in order to build in the Bournewood type protections one would warrant in relation to treatment for mental disorder there were mirrored protections, there were similar protections to those in the Mental Health Act. One would not want to set up a completely separate system so again if I may just paint a simple picture for you, if you have a patient who is requiring medication for mental disorder, after an equivalent length of time as under the Mental Health Act there should be a second opinion. How could one do it? One could have a second opinion process under the current Act or whatever comes under the new Act, you could have that accessed by two acts rather than one and that would keep duplication to a minimum, training to a minimum and bureaucracy to a minimum. That is one thing, there are others. We think that there are questions as to what invasive medical treatment should come under the general authority. If there are considerations there then one of the things one could do is have a second opinion, have a range of medical professionals and adults. Again to give an obvious example if it is thought that somebody needs a lot of teeth removed is it right that it goes under the general authority or should one at that point have a requirement that somebody else skilled in that work would be brought in independently to confirm the clinical advantages of this? It is building on this. That would of itself mean that in terms of Bournewood it would address those gaps. We think we would go further because it would bring in other branches of medicine and stop some of the discrimination between psychiatry and other branches of medicine.

  Q298  Mrs Humble: I want to clarify if could there be a harmonious situation that Stephen was talking about between any mental health legislation and this legislation. On that issue of compulsion that you referred to, which does seem to be a very distinctive part of mental health legislation and at variance to everything that is in this draft Bill. I just wonder if there is any way that we can overcome that?

  Dr Zigmond: One of the difficulties is the notion of compulsion. It can certainly be argued that if somebody truly lacks capacity are they refusing anything, are you compelling them any more if they can no more refuse than they can consent. As I say this is one of the difficulties. For example in some very ordinary situations can you compel somebody not to go into the road, you can because that would be immediately dangerous, but it is less than that. This Bill presents those difficulties. There are those of us who believe that a Mental Health Act, (believe very strongly I have to say) should not be forcing anything, any intervention on people who are able to make decisions for themselves. That is a route that they have gone down in Scotland and we would very much like to see the basis of that. We would go further and say in an ideal world—I was advised not to say this but as you have asked the question I will—we think there should be two bills but not these two. We would have an Incapacity Bill very much based on this but with the protection that I just hinted at which would cover all people who lack capacity for whatever reason and then it is true that that would not cover certain groups of people who have committed offences but we would have a separate Mental Disorder Offenders Bill, we would have two but not these two.

  Q299  Mrs Humble: Would you also recognise the fact that within this draft Bill it is recognised that sometimes people who will be making decisions whilst they are capable for a future time when they will lack capacity which you as clinicians may not agree with, the family may not agree with, carers may not agree with but those decisions will hold, whereas when you are dealing with your patients who are confined under the Mental Health Act you are making decisions on their behalf and they may well be expressing opinions that they are totally opposed to what you are doing to them. I have real difficulty trying to come up with a situation where we can harmonise those two.

  Dr Zigmond: I think it could be harmonised. Leaving that to one side can I say that I would not want this to detract from building in the protections that I talked about.

  Dr Kinderman: Tony and I very much see eye to eye on this. Is it possible to come up with a situation where we look out at the world and see nothing but fluffy bunny rabbits? No, there is always going to be difficulty out there. A big question is, like Tony says, is the issue about two Bills but not these two Bills. There are a number of options. There are a couple of things that are important, there could be better harmony between the two bills, both Tony and I are making some percentage of our evidence today about the relationship with the Mental Health Bill. The way this current Incapacity Bill is structured has the safeguards that Tony mentions but the basic principle, and this is one of the reasons why we would like the principles to be on the face of the Bill, the principle that people who are able to make decisions for themselves should have those decisions respected is one that we welcome. Introducing that into UK law would only go some way towards harmonising the issue. The reason why I see people who are treated compulsorily under the Mental Health Act and the reason why Tony treats people under the Mental Health Act is because they are not able to make valid decisions about their health care, their health care is perturbed and disturbed by their mental disorder. It is not dissimilar to the reasoning behind the Mental Incapacity Act because you are not making valid and consensual decisions so decisions are perturbed by the mental disorder. It is in the realm of the incapacity legislation in general to say that a proxy decision has to be taken about the validity of the health care. It is also the case that many of the people detained under the Mental Health Act I have seen for research purposes are perfectly able to refuse participation in research and I have to by law accept that refusal, I cannot say because they are mentally ill they have no rights under law.

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