Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 300-319)


8 OCTOBER 2003

  Q300  Mrs Browning: Can I bring you back to the Bournewood case, some of the problems that occurred there were that carers who did have capacity and who were able to speak for that individual were rejected by the professionals and had they had more input earlier we would not have needed what was described as medication and then after a period of time a second opinion. I can see the strength of having the opportunity for an independent medical opinion so long as when you are dealing with people with autistic spectrum disorders the person giving them the second opinion actually has a specialism in the subject. This is the real problem that we have, we are talking about conditions like ASDs, which come under the remit of psychiatric services and inpatient treatment but there is a paucity of psychiatrists in this country who are actually able to deal with a combination of either autistic behaviour, which is not a psychiatric condition but is what a lot of us would regard as fairly normal autistic behaviour however challenging and those people with an ASD who do have an overlying psychiatric condition. How do you see this draft Bill specifically helping cases such as the Bournewood case?

  Dr Zigmond: I agree with everything you say. The only thing I would add is there is a shortage of psychiatrists in this country not just in that particular area.

  Q301  Mrs Browning: Good plug.

  Dr Zigmond: I agree entirely. One of the things that we tried to do when I served on the relevant bit of the Mental Health Act Commission which addressed issues not only of those where there could be expertise in particular areas and the importance of trying to match people with expertise but also looking at race and gender because we also thought that was important. They are important but whilst we have the shortages that we have it is very difficult to ensure that the highest standards we wish for are always met. I agree with everything you say.

  Q302  Mrs Browning: Are the resources and lack of trained psychiatrists going to have as much an impact on this legislation as they are having under the general mental health services and the Mental Health Act?

  Dr Zigmond: Except that much of this legislation of course is not relating to psychiatric care.

  Q303  Mrs Browning: I realise that.

  Dr Zigmond: But where it does, yes, it will.

  Q304  Baroness Knight of Collingtree: I ask this question as much to get it on the record as to ask your opinion of it. It is my understanding that many mental patients' conditions, particularly those with psychiatric worries, vary greatly according to whether they take their medication or whether they do not take their medication. In other words, there are times when they are perfectly logical if they have taken their medication and times when they are not. Could we cover this point? Am I right or wrong on this? How do you deal with it?

  Dr Zigmond: You are right. I am not quite sure what it is you are asking. As a statement you are right, that many patients with many disorders are well if they take their medication and poorly if they do not.

  Q305  Baroness Knight of Collingtree: But we are dealing with psychiatric patients and mental patients.

  Dr Zigmond: They would be no different from somebody with epilepsy or diabetes. It is really rather stigmatising I think to pick out one particular group because it applies to most people who have chronic conditions which require medication. If they do not take the medication, they will be poorly. Some of those will have their decision-making ability markedly damaged—an obvious example is diabetes—if they do not take their medication. One needs to be careful about singling out one group.

  Q306  Baroness Knight of Collingtree: This is the Mental Incapacity Bill and so that is why I am talking about that particular group. I do not mean to stigmatise them.

  Dr Kinderman: One of the issues which follows from that is that occasionally you are presented with somebody who makes a decision and you, as a clinician, have to follow that through, and then they make a different decision and you have to follow that through. There is a logical position which I think has to be incorporated in the legislation which one that deals with that fluctuation of capacity. You have to have a plan of care as a clinician for an individual whose capacity fluctuates and that is a subtly different way of conceptualising their clinical problem. "Do I let this person walk down the street today and do I let this person walk down the street tomorrow?" You have to make a clinical decision as a clinician about what to do in both circumstances, and the decision as a whole has to cope with the fluctuation as a whole.

  Q307  Baroness Knight of Collingtree: Thank you, Dr Kinderman, that was what I wanted to bring out. Does the Bill actually cover that variation that you have to deal with in the general rules?

  Dr Kinderman: Yes, broadly. One of the issues it relates to is the issue of general authority. If the Bill were worded in such a way that preventing somebody from wandering were covered by general authority but their capacity as to whether it is dangerous to walk the streets or not was to fluctuate, what you would actually have to do is make a decision about whether a wider clinical decision was necessary on how to deal with their wandering and fluctuating capacity, and that would be the issue at question. One of the things which hopefully we will come on to in a minute is that such a decision might be covered by general authority, or restrictions on that person's liberty might be such that you would need to do something a little more unusual and you would need more authority to deal with that.

  Q308  Lord Rix: If you take it further and look at people who have a permanent limited mental capacity, not a fluctuating one, would you think it possible, and how would you make it possible, for them to make advance decisions, say, to refuse treatment? Do you think this could be written into the Bill?

  Dr Kinderman: Yes, absolutely it can be written into the Bill, and I think the Bill as it stands—

  Q309  Lord Rix: You think it is adequate?

  Dr Kinderman: I think it needs to be followed up with a robust code of practice but the general principle, does this individual at this time in consultation with this responsible clinician understand the issues and the way they have been laid out, whether or not they have made a decision, the Bill allows for that and that is good.

  Lord Rix: Good.

  Q310  Mr Burstow: General authority, which we have been talking about for some while. I have a couple of questions but, just to make sure I understand the discussions so far around the two different Bills, can I ask this? You have described the two parallel systems of proxy decision making effectively, who decides which set of proxy decision making actually applies?

  Dr Kinderman: There is not a Mental Incapacity Act at the moment.

  Q311  Mr Burstow: Assume there is, who would then decide?

  Dr Zigmond: I think that is one of the difficulties which we will be faced with. There are certain areas where it would be clear, an obvious one being that both the current Mental Health Act and the proposed one do not require any lack of capacity. So if people have capacity and for some reason you have to go down the road of compulsion, then it will be the Mental Health Act.

  Q312  Mr Burstow: But it is unclear?

  Dr Zigmond: For an incapacitated patient it would be very difficult. At the moment of course with the current Bill they need to be in hospital, and that may make a difference, whereas if we had a Mental Health Act which does not require admission to hospital, does not require in-patient status, it would become even more difficult. But, as I say, one of our fears is that it could lead to some of the provisions in this Bill being overridden.

  Q313  Mr Burstow: I wanted to get that out because it is something we have to deal with. Can I ask on the question of general authority, the evidence from the British Psychological Society in a way puts forward the argument there is a need for a further element, another category, of proxy decision making, the idea that where you get to a certain intensity of activity or treatment or whatever that would then require registration with the public guardian. But that still leaves a whole host of issues which might fall within the general authority. Do you feel the general authority is a defendable idea which should stay in the Bill and how can we draw the boundaries on it once we exclude a whole range of things which should be referred down the registration path?

  Dr Herbert: I think we have a general consensus that there is a huge amount of decision making which could usefully come under general authority which at present is happening anyway but has no clear framework. So many day to day care decisions are happening without a clear legal status and general authority would allow a vast chunk of those decisions to be made, whether in the best interests or that restriction would happen, but there is a threshold beyond which the seriousness of the decision and the nature of the decision would step in and say, "We just cannot work on best interests, we have to stand back and look at this." What we are saying is that that is not a one-off decision which is suitable for all cases, but sometimes it becomes a very straightforward, "Okay, we need to log the fact it has moved to a different level" and you do not need to do much more in terms of assessment because it is clear what the issues are. However, there are some small number of complex cases where you need a more detailed assessment and those are the things which are not specified in the Bill and probably should be in the code of practice but you need something which takes you through those levels in a systematic way.

  Q314  Mr Burstow: What would be the test you would be applying which would enable you to make that judgment which should be in those codes of practice to ensure everyone adopts a similar approach?

  Dr Dooley: I think there are a number of factors within that. I do not think we can specify the facts but a code of practice will be quite important to operationalise those. You have the severity of the decision; you have the person requesting the withdrawal of life-maintaining health care and matters like that. You also have the complexity of the situation, and I practice with older people where you may have disputes with carers, where a family member wants one thing and another member another and so on, so there is an area of complexity there. There are certain decisions which by necessity are high profile, and you have mentioned the one in the papers recently where in a sense to protect the people involved you need a formal decision making process and a monitoring of that.

  Dr Zigmond: There are some areas where one would go towards registration but for many one would still want to have some system of notification. One of the difficulties it seems to us is that if there is no notification to a central body, how can anybody know these people exist and are being subject to something, so therefore any inspectorate just goes by the wayside. So we need notification. Secondly, when we met with the BPS and discussed this we decided there were some things which would need very clear thought when going into the codes of practice and it became clear through the discussion that one sees things from different sides depending on what one is used to practising. For example, one of the things on the BPS list at the top is severe life-saving treatment. That may be okay if it can be done in the cold light of day but if somebody comes unconscious into casualty, you would not want to have to go through a system of registration before the doctors could intervene.

  Dr Ehlert: The other issue is that at the moment it is either/or, it is general authority or going to the courts. I think going to the courts can be very daunting for some people and apart from that it is also very costly, I would imagine. Earlier in the discussion there was reference to a continuum of factors and I think therefore there needs to be some sort of plan.

  Q315  Mr Burstow: That is helpful. I does seem to me, Chairman, that is what this is suggesting, there is always another tier of proxy decision making being suggested. Can I come on to another question regarding general authority again? Several witnesses have talked about the issue of the use of restraint in   certain circumstances, or have alluded to restraint  being used or suggested there might be   circumstances in which restraint might be appropriate for a person who lacks capacity. Is there not a certain situation where the use of the general authority could become a defence in the courts for what many would regard as an inappropriate use of restraint?

  Dr Zigmond: Yes.

  Q316  Mr Burstow: My final question is on the question of abuse more generally. Does there need to be a specific duty, and, if so, is it on the local authority or some other agency, to investigate allegations of abuse and also to be in a position, picking up on a point already made, to be aware there are people who are potentially being covered by this general authority?

  Dr Zigmond: We think the important issue is expertise and availability. In Scotland it comes under the Mental Welfare Commission. Whether it should be a separate body or whether it should come under an expanded Mental Health Act, whether it should come under an expanded CHI system, whether it should be the local authority, we certainly didn't feel we should comment on it. The important bit is the expertise and availability.

  Q317  Mr Burstow: Are you aware that local authorities already have a responsibility under "No Secrets Guidance" to develop adult protection?

  Dr Zigmond: Yes.

  Q318  Mr Burstow: Would not a statutory duty help reinforce that framework?

  Dr Herbert: We have discussed that, and local authorities do already investigate individual cases. We feel that is not sufficiently robust as it stands at present and what you have is a case-by-case case law build-up in local areas. What we are arguing for is that there should be more national recognition of these issues so you do not have to start each time discussing issues of capacity. At present they operate in a vacuum. The other point on your question of general authority, what happens if there is a question of abuse, and what we are arguing for is as soon as there is a question mark about general authority and you are raising that challenge, that is when you start to say there should be an assessing of performance of some kind, which then opens up the opportunity for anybody who has a conflict with it which has not been solved by normal clinical case discussions, to have a way of taking it forward which is not immediately going to court but assessing it in a more balanced way and trying to take it forward in that way.

  Dr Kinderman: You mentioned restraint, but wandering is a better example. At the moment because there is not a system of formal registration of these sorts of decisions with somebody like a public guardian, we do not know how many clinicians regard it as part of the normal clinical practice to restrict people's activity and their wandering behaviour. One of the benefits of a formal system of registering that is you know that and you may well find that people are waiting until it is an impacting decision on somebody's life before they actually decide they need to invoke the law. By having a system of registering these decisions, you would be monitoring it over the years and could find out how to respond.

  Chairman: Before we move on to advance decisions, I want to be clear about the assessment of capacity.

  Q319  Mrs Humble: Can I ask you the same question I asked our earlier witnesses which is vital because it underpins the whole Bill, which is that process of assessment of capacity. Who should do it? How should it be done? Especially with regard to those people who do not consent to being assessed. Do you think it should be on the face of the Bill or should it be in regulations?

  Dr Kinderman: We think on balance it should probably be in the regulations. One of the reasons for that is that it is actually very complex. It is the duty of every doctor and probably every psychologist to have some awareness as they are treating a person of that patient's capacity to understand the decisions. That is just a general duty. It is also the case that the vast bulk of the decisions we are talking about which are covered by the Incapacity Act generally will be done under some general authority, it is a standard part of care. The decision as to whether you have to make a formal assessment of the person's capacity, decide they have capacity and decide to act under general authority, decide to make a formal assessment of capacity as part of your normal clinical practice, register the patient as an incapacitated patient and move on and treat them, whether you call in another professional or a more senior colleague, there is a gradation to these things and it should be part of the normal clinical practice of professionals to do that regularly. So the guidance is you should always have a view of capacity, you should assess it within your own competence and call in specialist help to assess the more difficult areas when the decisions are more severe.

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