Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 320-340)


8 OCTOBER 2003

  Q320  Mrs Humble: Is it satisfactory to have it done in that fairly vague way, of somebody reaching judgment through conversations with their patients, or should there be specific steps laid down, if not on the face of the Bill then in a code of practice, that you ought to be ticking off? If the individual is not co-operating, how can they go through that check list?

  Dr Kinderman: I am sorry if you misunderstood. Yes, there should certainly be very clear guidelines about how it should happen and that should be regulated on the face of the Bill. There are two obvious things to say. The first is about the registration of people as competent authorities in this matter. One of the things the British Psychological Society would welcome would be some brief mention of approving certain people as registered practitioners, in the same way as is done under the Mental Health Act, when people are Section 12-approved because they have a specific competence in that area. That is one thing, are you or are you not capable of making these sort of assessments? The other thing is having guidelines laid down in a code of practice, which is referred to in the Bill, but which is flexible and hierarchical. We would certainly welcome strong guidelines but it is a hierarchical thing. You do not behave and then assess capacity and behaviour differently, you are always assessing capacity and always using clinical judgments to decide on this.

  Professor Murphy: I would like to endorse that and say that for many situations assessing capacity is not that difficult and with a set of guided questions a general practitioner could certainly do it without any difficulty and a lawyer could certainly do it without any difficulty in lots of cases. We are only proposing it should go to a psychologist with expertise in that area where it is a very complicated decision and where you might need more advanced knowledge.

  Q321  Mrs Humble: So you would expect different professionals to be making decisions on the particular issue on which the competence is being assessed? So, for example, a lawyer could make a decision if you are talking about somebody's competence to make a financial decision. They may be competent to make certain decisions but not necessarily the particular decision that has arisen, so are you saying it would only be in very complex cases it would go to somebody who would be registered on your list? Who would decide that that individual is a complex case and it should go that step further?

  Professor Murphy: To answer the first part of your question, yes, that is what we are saying. I think it would be very easy to set out a framework that lawyers could use and GPs could use although it would have training requirements.

  Dr Dooley: In some respects something similar is happening at the moment because if you take an elderly person in a medical setting in an in-patient ward who is behaving irrationally and perhaps not consenting to treatment, the first question would be, why is that happening? They might call in a psychiatrist to do an assessment about their capacity, that psychiatrist might then call in a speech and language therapist if that person has a communications difficulty, they might call in a clinical psychologist if they had reasonable memory difficulties. So in a way this is a mirror of that. It is a cyclical system. As we develop our specialist assessment we can then feed back to the more generic services the different aspects which allow us to assess it and that will inform their practice.

  Dr Zigmond: Can I take it further in two respects? I agree with everything that has been said. If one looks at the current Mental Health Act, Section 57, that clearly gives to non-medical people who are members of the Mental Health Act Commission from any discipline, including lay people, the duty to assess whether in certain circumstances patients have capacity and are consenting in relation to surgery for a mental disorder. I do not think we should go down the route of saying that any particular group of people do not have skills in that area because with further training and within a regulatory framework we could include a wide variety of people. The second thing is, these are supposed to be situation-specific decisions relating to capacity. Let me give you an example. Suppose I was asked as a psychiatrist to assess if somebody was capable of making a decision as to whether they should have a hemi-colectomy, I would not have a clue. I do not know what is involved, how could I assess what the patient understood about what was necessary, about the pros and cons, about the adverse effects, the benefits and so on. So it would have to be, in those circumstances, a surgeon who knew what he was going to do, or she was going to do, who knew the sorts of information which the patient would require to make a decision and then be able to assess whether or not the patient was able to understand. It may be the patient could not do that by himself or herself and it would require two people or more. So the notion that somehow you can have an individual or a class of individual who can assess capacity I think is wrong. It is much more specific, just as whether the patient has a lapsed capacity is specific, so the people who would be involved in making that assessment at that time for that individual relating to that issue would have to be specific.

  Q322  Mrs Humble: Accepting all of that, how does that lead into your earlier statement about having a registered group to deal with the more difficult cases?

  Dr Kinderman: That was exactly what I was going to say. Here is an example, if my colleague over there were to arrest me and charge me with an offence, he would ask me if I understood the charges he was putting to me, and he would be making some sort of judgment within the bounds of his competence about my capacity. You would expect him to do that and that would be okay. If he had some doubts, he could call Tony to assess my capacity. What we are saying for the purposes of this registration, what you should do as health care professionals is work within the bounds of your competence, judge patients' capacity, if you think they are incapacitated about a particular issue then you would operate under general authority. If you thought they were incapacitated and the issue was of a nature to warrant registration, there should be some people who are listed with the Court of Public Protection, or whatever it is, who have specific competence to rule on the more difficult issues. In the same way that the police officer can work out whether I appear to understand what he is charging me with, if I do not appear to understand, they should call in the police liaison doctor to assess me properly because that is the person capable of doing it. He assesses capacity, if he cannot, he calls on a colleague who does it in a more sophisticated fashion.

  Mrs Humble: That is very helpful.

  Q323  Chairman: It would be interesting to watch the process of a psychiatrist assessing a psychologist!

  Dr Zigmond: There are limits!

  Q324  Lord Rix: I come back to advance decisions. Should the Bill stipulate that advance decisions to refuse treatment should be made in writing after full consultation with the family? Would you consider it desirable for such decisions to be witnessed by a competent professional known to you, such as your GP or your lawyer, if you have one? If I can add a second part to that question which I was unable to ask your predecessors here, the BMA, if you have advance refusals already down and witnessed and fully documented, does this lessen your statements of wishes about, say, where you are going to be living in your extreme old age or the sort of health care which you will receive? Does the advance decision to refuse treatment always take precedence over an advance statement of wishes?

  Dr Ehlert: It is a very complex question but I will try to answer it in parts. First of all, I think it is about looking at evidence, and certainly if you have not got something in writing how do you actually prove evidence that advance decision making has been made. I would say, yes, evidence in writing needs to be made or, for example, if the person cannot write things down to have some sort of evidence in writing. Should it be witnessed by a doctor or lawyer, the issue is that some people may not want to go to a doctor or a lawyer and therefore perhaps one should consider having two witnesses who were not professionals.

  Q325  Lord Rix: Indeed.

  Dr Ehlert: The other issue is that perhaps one should also consider that if one were to incorporate having two witnesses who were not professionals, then you would have to look at ensuring these people would not be benefiting by the person's death.

  Q326  Lord Rix: Of course.

  Dr Ehlert: The other issue is of course cost. As soon as you start getting professionals involved there is a high cost. The other issue is that perhaps one should consider within a code of practice having a model living will or advance decision directive in order to set standards. Of course one could thereby take into account advances in medical treatment, actually ensuring that the person is able to renege on their original decision if necessary depending on the issue at stake in defining incapacity.

  Q327  Lord Rix: What about advance statements of wishes? Are they lessened by the advance decision making?

  Dr Zigmond: Could I come back to that? Could I first of all add that one of the interesting issues here is that Clause 24 is very detailed and the circumstances in which advance statements will not apply are very complex. We do not think it should have to go to a professional, it is expensive and why should you, but of course it is a bit like a will, the risks of getting it wrong and therefore your wishes not being followed are greater perhaps if you have not taken advice. I think that is as far as one could go. On the second point, clearly if there is any statement that is currently made by a capacitous individual, it should override a previous statement by the capacitous individual. So while they are able to make it, then I think it is very important. If I could give an example, it might illustrate some thoughts on this. I was at one of the conferences recently and a remarkable gentleman with Alzheimer's Disease was talking about this and said he had all his life hated to have a bath. He assured us he was very clean but he liked to shower and he wanted his wife to be able to convey that at such time as he was no longer able to. It occurred to me that at that stage it may be he would prefer a bath, he does not know what he would want then. I suspect he would have to be really quite severely damaged before he was unable to make that decision at that time, and the thought of him trying to climb in a bath and someone pulling him out saying, "No, your wife says you are not to have a bath", seems a little harsh. So I think the issue is one of constantly deciding for this issue, the seriousness of this issue, is that person still able to make a decision and, if they are, then that is what must count.

  Q328  Lord Rix: I have drafted something fairly recently based on a living will, which seemed to be fairly wide in its implications but actually quite specific. It refers to "life-threatening physical illnesses from which there is no reasonable expectation of my recovery or of severe and permanent impairment of all my intellectual faculties together with a physical need for life-saving treatment" and it then goes on to say what you want to do. I would have thought that was not being unreasonable. You are not saying to somebody, "Kill me, please, automatically", you are saying, "When those conditions are reached I request all treatment necessary to maintain comfort and dignity and relieve pain even if this is likely to shorten my life . . ." and obviously I am thinking of morphine, ". . . and to refuse treatment aimed at prolonging or artificially sustaining my life." Would you not think that was reasonable?

  Dr Zigmond: I think it is excellent. In order to be slightly devil's advocate though, supposing you have a condition which is a terminal condition and something happens which causes you pain and the only way I can treat that is not by shortening your life but by extending it.

  Q329  Lord Rix: Like putting me on chemotherapy?

  Dr Zigmond: In order to deal with the pain, not in order to extend your life. Would your wording cover that?

  Q330  Lord Rix: Yes, I think it would.

  Dr Zigmond: I merely give that example to show just how difficult it is to be precise.

  Q331  Lord Rix: Indeed.

  Dr Zigmond: The principle, absolutely.

  Chairman: As we have not got the wording in front of us, we should perhaps move on.

  Q332  Mrs Browning: For those people who have a known condition which results in fluctuating capacity throughout their life, would you as professionals feel that during those times when they clearly have capacity you would feel it incumbent upon you to encourage them to take those advance decisions? Would you be pro-active in doing that?

  Dr Zigmond: Yes.

  Dr Kinderman: Yes.

  Dr Dooley: Yes.

  Dr Ehlert: One of the pointers in relation to the evidence is about registration. At the moment it would be quite difficult to actually find out whether anybody has made a living will or advance directive in relation to their health care, so therefore one should consider some sort of registration process which is accessible in order to find out whether those decisions have been made.

  Q333  Baroness Knight of Collingtree: Really this is crossing Ts and dotting Is and following on something which Dr Zigmond and Dr Kinderman said. Do you think it would be good if the draft Bill actually put a specific duty on doctors and other professionals to ensure that an advance decision to  refuse treatment is not leading to unintended harm   and some kind of mechanism whereby unintentionally harmful decisions could be avoided or set aside?

  Dr Herbert: That is covered by Clause 24, is it not?

  Dr Kinderman: We had a discussion about this when we saw the question and we came to the conclusion that that is covered by the issue of what constitutes the invalid decision, Clause 24. I have not got it in front of me but it says something along the lines that if that decision was made on advice but there was something which was not foreseen by the person, and if it is unintended it was not foreseen. We thought it was probably covered by Clause 24.

  Dr Zigmond: Could I add, please do not ever put on me a requirement to ensure anything. You can ask me to try and ensure, or do my best to ensure, but how I can ever ensure for certain anything, I do not know.

  Q334  Baroness Knight of Collingtree: I was not so much asking you to ensure—and how I would ever ask a psychologist to ensure anything, I do not know—I was merely hoping possibly the Bill might be able to.

  Dr Kinderman: Just to clarify, Clause 24 refers to circumstances which were not anticipated, and if you are talking about "unintended" that would seem to cover that.

  Q335  Baroness Fookes: Basic care: do you believe that the Bill should exclude basic care from its procedures and its mechanisms or not?

  Dr Herbert: No, the strength of the Bill is that it does include them under general authority because those are the sort of things which we are saying are left out.

  Baroness Fookes: So you are all agreed.

  Q336  Baroness McIntosh of Hudnall: This is about the duties of people in possession of lasting power of attorney. Is it your view that there are sufficient safeguards in this Bill to ensure people carried out their responsibilities effectively? Specifically, do you think that the Bill will be improved by the list of, as it were, specific provisions of duty of care being placed on people who have lasting power of attorney and a list appended of what that implies?

  Dr Kinderman: In the absence of anybody else saying yes, the answer is yes.

  Q337  Baroness McIntosh of Hudnall: Commendably brief.

  Dr Kinderman: One of the benefits of strengthening it—and this includes cost because there is a secretariat involved—and having these things, including registration of patients as being incapacitated with the public guardian, is you have staff to do research on that and they can look to see how many of them are there, what they have written, how many would be invalid if you were to look at them as a lawyer, and you can only start to do that if you move down that path.

  Q338  Baroness McIntosh of Hudnall: Can I reframe the question because I want to make sure I have understood your answer and that indeed you understood my question. It has been put to us that the Bill is deficient in that it does not specifically impose a duty of care on those who have lasting power of attorney granted to them. Do you think the Bill would be improved by that duty of care being made explicit and binding?

  Dr Ehlert: Basically some sort of mechanism to ensure further safeguards potentially needs to be incorporated in a code of practice. For example, actually ensuring that anyone with lasting power of attorney is looking after the welfare of the person concerned like in terms of financial aspects. For example, one could look at having some sort of audit on an annual basis of the accounts, otherwise anyone could end up doing anything. On the other hand, there are at the moment quite significant restrictions in relation to power of attorney where the person has to go to court to give out gifts and things like that which the person might have normally done anyway, so therefore one could look to see whether the person has got, for example, a will which could be drawn on in order to look at issues of disputing gifts and things like that. I do not know if that makes any sense.

  Dr Zigmond: Could I give an example of a difficulty? You have an elderly person who is suffering from a degree of dementia, which is sufficient to lose capacity in relation to where he or she should live. They are in hospital and the time has come for discharge. They have spent their whole life talking about—and they have not made an advance statement—the importance to them of staying in their home with all necessary support but the problem is they do fall over. One of the children, who is extremely caring and extremely fond of them, says, "They would be safer in a nursing home, so we want this person in a nursing home." You know the patient actually wanted to go home and you think as the doctor with the necessary support they could be maintained there. That is not an uncommon scenario and it is a very difficult one. They have given the authority to their child, quite rightly, that is what they wanted to do, and I think that anything that reminds the person with lasting power of attorney of the fact they have duties to consider that list, including the discernible wishes of the patient, would be very helpful. I do not know if that answers your question.

  Q339  Mrs Browning: Could I add another twist to that which is familiar to many of us, and that is the elderly person who in their 60s and early 70s says, "If anything happens to me, don't worry about putting me in a home", but when they get to their 80s and they are falling over, they say, "No, no, no, I'm not going in there!" That is also a very difficult situation and yet they have expressly, when they certainly had capacity, expressed a different view.

  Dr Zigmond: Yes.

  Dr Herbert: There is a need for us all to change our minds sometimes.

  Q340  Chairman: But they have the capacity at that time to say no.

  Dr Herbert: I think we have to be quite clear that lasting power of attorney does not have to give you total rights over that individual, it might give you rights to make decisions in certain areas and that might be one of the safeguards you ought to have.

  Chairman: I think we have reached the point now where we have been going for 2 ½ hours but there are two areas we have not reached, and those are lessons from other jurisdictions, excluding Scotland which we have spoken about. If you have any views on that, do write to us, and also if you would write to us about resources. Can I thank you all for an extremely helpful session. If there are any other points you wish to make about things which should have been asked or things you would like to expand on, we would be glad to receive them. Thank you very much indeed.

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