Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

9.Supplementary memorandum from the British Psychological Society (MIB 1205)

Ms Karen EhlertHonorary secretary, Division of Clinical Psychology, BPS
Dr Camilla HerbertChair, Division of Neuropsychology, BPS
Professor Glynis MurphyFellow, BPS
Dr Peter KindermanChair, Division of Clinical Psychology, BPS
Dr Catherine DooleyBPS


1.   The Draft Bill would put into statute a number of principles already encompassed by common law. It would also establish several new systems relating to substitute decision-making. In your view, does the Draft Bill go far enough to clarify and improve the decision-making process for professionals, families, carers and those who are unable to make decisions for themselves?

  The BPS welcomes the Bill and, in general, welcomes its structures, clarity of language, and content. We have reservations, detailed below, but we think it is a positive move forward.

2.   In your view, does the Draft Bill place sufficient emphasis on the need to facilitate the making and communication of decisions by people with incapacity?

  The BPS supports the need to emphasise appropriate and alternative modes of communication, for example, use of interpreters and technological aids, so that the views and opinions of the individual with impaired communication can be made known to professionals, carers and advocates, irrespective of the communication method. Alternative and assisted means of communication are not adequately covered in the draft Bill. However, this can be addressed in two ways. First, by incorporating a Statement of Principles on the face of the bill (similar to the Incapacity Act in Scotland 2000) which would directly address the issue of an autonomous decision being made possible by appropriate facilitation. Secondly, the BPS supports the recommendation of the Making Decisions Alliance, that Government Departments develop a Code of Practice, involving, and incorporating the views of the relevant professional and other representative bodies. This recommendation is made in order to ensure that those capable of making decisions are facilitated in doing so; that the rights of the incapacitated person are protected; and that proxy decision makers are aware of their obligations and the scope and limits of their power.

3.   In your view, are the boundaries and overlap between the Mental Health Act 1983 and the Draft Bill sufficiently clear and workable? Is this likely to change if the proposals for a new Mental Health Act are enacted?

  The BPS accepts that there will be overlap between the two statutes but recommends that there is a need for compatibility. The BPS believes that both Bills should address the issue of people who are unable to make valid decisions. The emphasis of the Mental Incapacity Bill is placed on the needs of people who cannot make decisions for themselves, many of whom do not have mental health problems and would not see themselves as part of such a framework. Their needs include the making of decisions about legal, social, financial, and health care issues. In contrast, the Mental Health Bill addresses the needs of people whose decisions may be biased by mental disorder, and is primarily concerned with the decision to accept treatment for mental disorder. Therefore, the BPS suggests that Section 27 which addresses specific areas of overlap should be amended. Clarity is needed concerning:

    (a)  individuals who do not have a defined mental illness but where a degree of compulsion or constraint may be required. This may include individuals who are likely to wander in a confused state where a secure and protective facility may be helpful; and

    (b)  individuals who are unable to make valid decisions for themselves under the definitions of the Mental Incapacity Act who also have mental health problems as defined by the Mental Health Act. The BPS welcomes the definition of capacity used in the Mental Incapacity Bill and recommends that the Draft Mental Health Act should include a criterion of "impaired judgement".

  Finally the BPS questions whether the title of the bill adds to the potential confusion with the Draft Mental Health Act, and would support the title "Incapacity Act" (similar to the Scottish experience) as a useful way forward.

4.   The BPS advocates the inclusion of a statement of principles at the start of the Bill, similar to that included in the Draft Mental Health Bill. Does the RCP agree?

  The oral evidence would suggest that the RCP does support this.


5.   Should the Bill specify how or by whom an assessment of capacity should be made, in respect of individuals who do not consent to be assessed? Or should this be left to the Code of Practice?

  The BPS believes that there should be a hierarchy of statutory response and a hierarchy of assessment. For many people the General Powers of the Incapacity Bill could be used to facilitate and legitimise basic care. All healthcare workers can and do assess capacity as part of their work, but at present such assessments are informal and idiosyncratic. This Bill would make this more systematic and auditable. The BPS believes that more serious decisions should be preceded by a process of Registration of the patient with the Public Guardian. We recommend that this should be attested to by a Registered Practitioner and that this requirement should be included in the Bill. Such registration should be accompanied by an appropriate assessment by an appropriate professional. In some cases this will include psychologists or other health care professionals such as speech and language therapists. However the level and type of assessment required will vary according to the complexity of the decision being taken, and this would be best described within the Code of Practice. The Draft Bill unnecessarily excludes relevant health care practitioners from providing an opinion at this level due to the use of the term "medical".


6.   Where should the limits of the General Authority be drawn in relation to medical treatment?

  The BPS believes that most care would be conducted under General Authority, but that if there was dispute or a serious intervention was being considered, then Registration would be necessary to ensure that an appropriate assessment of capacity had been carried out.

7.   The BPS propose that in certain circumstances, use of the General Authority should be controlled by a system requiring formal registration of the incapacitated individual with the Public Guardian. As far as clinicians are concerned, what advantages would a formal registration system have over the current proposals for the General Authority?

  A formal system of Registration would provide a safeguard for patients and clinicians by ensuring that important decisions are open to scrutiny. For the clinician such a system would offer protection from claims of clinical negligence and inappropriate behaviour. In addition, it provides a mechanism for recording evidence along with the rationale for proxy decision-making. Under the existing proposals for General Authority there is no system for monitoring or auditing proxy decision making. The BPS believes that most registrations would by uncontroversial, for example, the enacting of a lasting power of attorney for an adult with dementia, and would not incur substantial costs. However, closer scrutiny will need to be provided for people with acquired brain injury and learning disabilities. Therefore, a Code of Practice should provide guidance as to when a straightforward registration is insufficient and also provide recommendations regarding further assessments, and by whom these should be undertaken. The BPS does not see Registration as necessarily restrictive of the individual's ability to make decisions in areas not covered by registration.

8.   Do you consider that the admission of an assenting incapacitated person to hospital by a doctor acting under the General Authority resolves the "Bournewood gap" and provides sufficient protection for both the doctor and the patient?

  The BPS believes that the Mental Incapacity Bill will address the Bournewood Gap.

9.   Should Local Authorities be given duties to investigate possible abuse taking place under the general authority? Would this alternative approach help address any concerns you might have about the exploitation of vulnerable people?

  The BPS believes that, whilst it is not inappropriate for the Local Authority to have investigatory powers (as they do already), the proper oversight body for the Mental Incapacity Act would be the Mental Health Act Commission or its successor body. However, in keeping with a hierarchy of decision-making authority, the BPS concurs that disputes are addressed quickly. Therefore, informal dispute resolution services should be set up. Public Services in general should have a legal duty to investigate incidences of actual or potential abuse, neglect and exploitation. This recommendation is in keeping with the Decision Making Alliance.


10.   Should the Bill stipulate that advance decisions be made in writing? If so, would it be desirable and practicable to include a provision that they should be witnessed by a competent professional such as a doctor or lawyer?

  The BPS's view is that whilst an adult retains capacity and is able to make their views known the issue of written or oral statements does not arise. The Mental Incapacity Bill has to address the issue of whether such statements should be respected once the capacity to revoke them or to change them is lost. The validity of advance directives are already addressed in Common Law. However, the BPS recognises that individuals do change their minds and would support the statement under clause 24(4c) which recognises "unforeseen circumstances" that might have influenced one if one had known of them, such as advances in medical treatment, associated with an improvement in quality of life, not anticipated at the time of the advance statement.

  The advantages of a written statement or a statement evidenced in writing is that it provides evidence as to a persons values and wishes, it also acknowledges the importance of self determination with regard to cessation of treatment. A formal process of registration will ensure the greater likelihood of the information being available when required, and would also demonstrate that the individual had had an opportunity to consider the issue in some depth. It is the BPS's view therefore that written statements, or statements evidenced in writing are important.

  The acknowledgement of advance decision-making in the Bill will provide greater clarity in the provision of health care, for those who become incapacitated, but who have made their wishes known in advance. It will also assist in providing protection for professionals and follow advance decision-making documents. However, advance decision making needs to be backed up by a Code of Practice that covers issues such as the drafting and implementation of advance directives.

  The BPS is concerned that additional costs and delay should not influence the equity of provision of advance statements. It is acknowledged that individuals who are competent to make advance decisions may not wish to engage a doctor or lawyer in the process of witnessing the written statement, although they may wish to obtain relevant information from them. Given that the document reflects personal wishes, consideration should be given to the document being witnessed by two people who will not benefit from the death of the individual drawing up the document. This can be addressed in a Code of Practice.

11.   Should the Draft Bill specify a duty on doctors and other professionals to ensure that an advance decision is not leading to unintended harm, and include a mechanism whereby unintentionally harmful decisions could be set aside?

  This is addressed under clause 24(4c) and can be further clarified through a Code of Practice.


12.   Should the Bill exclude "basic care" from its procedures and mechanisms? If so how should "basic care" be defined?

  The BPS strongly supports the inclusion of basic care as part of General Authority. The BPS further believes that, whilst this should cover most actions, there will be actions over and above basic care which should be covered by a process of Registration. We do not have specific advice on definitions of "basic care".


13.   In your view, are there sufficient safeguards in the Draft Bill against donees of lasting powers of attorney failing to carry out their responsibilities properly?

  The BPS believes that the Bill should include specific provisions to ensure that recipients of donee powers are placed under an obligation to fulfil these duties properly and that a mechanism for monitoring donees is established, in order to ensure that individuals who are no longer competent to make decisions, are protected from exploitation, abuse and neglect.


14.   Is it necessary for the Draft Bill to contain provisions regarding the involvement of incapacitated adults in research?

  Yes, see below.

15.   How might you balance the need for research to arrive at treatments for such disorders as Alzheimer's disease against the risk of exploitation and abuse?

  The BPS believes that such balance is the province of Local Research Ethics Committees and values their work, see below.

16.   To what extent do you consider that the present role of ethics committees are a sufficient protection for incapacitated or potentially incapacitated people from research that might be inappropriate and/or exploitative?

  The BPS supports the existing role played by ethics committees, but feels that decision-making will be enhanced by greater clarity provided by the Mental Incapacity Bill—see below. Furthermore, it is important that there is consistency in the standards adhered to by the various ethics committees.

17.   Is there a need for a formal "substitute decision-making" procedure whenever an incapacitated person is to be involved in research?

  The BPS believes that the Mental Incapacity Bill should include specific provision for research. We believe that this should address specifically the role of Local Research Ethics Committees (LRECs). We believe that LRECs should be given a formal legislative framework for their rulings in this area. There will be occasions where the research would involve interviewing a relative or carer and would not present unnecessary risk or exploitation of the individual concerned. However we believe that the Mental Incapacity Bill should specifically require LRECs to insist that individual proxy consent be obtained for research participation by incapacitated persons.


18.   Would the witnesses like to draw the Committee's attention to any aspects of similar legislation in other jurisdictions which they feel are instructive to consideration of the Draft Bill?

  This is outside the area of our expertise.


19.   Written evidence received by the Committee states that there will be a need for a "huge investment in training" and "a substantial research programme" to support the implementation of the Bill. Roughly what sort of sums of money do you think would be involved in England and Wales?

  The reference to "huge" investment of financial resources originated in the submission by the Scottish BPS. We apologise for any misinterpretation by the Committee, but we do believe that the provisions of the Bill will need to be properly resourced in order for the proposed legislation to actually provide the improvements that it promises and which we support.

  We believe that the resources will be needed in three areas: staffing, training, and supporting/evaluating the implementation.

  Staffing: We do not anticipate "huge" extra demands on staffing as a result of the Bill if it is clearly drafted and the Code of Practice is readily available. The Bill will codify existing good practice which already includes the demand for specialist assessments by psychologists. The BPS strongly supports the statutory recognition of assessments by psychologists, and we do anticipate that there will be an increase in the demand for our services within the health and social care fields. Planning for this, however, can be considered as part of the ongoing workforce planning discussions with the Department of Health.

  Training: All registered practitioners will require a basic level of training in order to implement the proposals under the new legislation. This would necessarily include a range of medical practitioners such as GPs, psychiatrists and physicians, but might also include lawyers, psychologists or other health care professionals. More detailed specialist training would be required for professionals to be registered to provide specialist assessments. Although there would be a need for training in the legislation itself, many of the clinical skills required by clinical psychologists and neuropsychologists will be met through their doctoral and post doctoral qualifications and continuing professional development and would not be an additional cost. The target population for training of specialist psychologists would be in the order of several thousand initially, with a smaller number of new practitioners being added over subsequent years. Typical training costs range between £30 for a short didactic session to £500 for a longer workshop event.

  Evaluation: The BPS strongly recommends that the workings of the Act be subjected to careful evaluation and research. Information will be needed as to how many people are meeting the criteria for Registration and for what types of decision, how often General and more Specific powers are being used, complaints etc. These evaluation and research procedures will have costs attached.

  Finally, the BPS believes that the implementation of the Bill will need a secretariat to support it. There will need to be a register of approved professionals, and a system to log and manage the registration of patients, request specialist assessments and scrutinise the workings of the Act. There will be significant costs if the Bill is enacted properly, but the BPS believes that this is an important piece of legislation that will have a positive impact on those who have capacity to make decisions but have difficulty in communicating them, people who do not have the capacity to make decisions, their relatives, carers and professionals involved.

October 2003

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