Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

15.Memorandum from Dr Adrian Treloar (MIB 679)

  I am writing to you as an Old Age Psychiatrist working in a district clinical setting to express my concerns about some aspects of the legislation now being proposed. I shall be brief and try to make discreet points. Firstly however, I should say that the principle that people with incapacity should be able to make decisions and express wishes about their future care is very welcome and absolutely right.

  1.  I am concerned however, that the proposed legislation on advance refusal is misconstrued. I feel it is discriminatory to allow people to make advance refusals while denying them, as the proposed legislation does, the opportunity to make requests about treatments they may wish in the future. Why should we not allow someone to ask that if they develop dementia they do wish to be given appropriate drugs and care, and why should they not consent in advance to treatments, such as surgery (or even ECT) if they know about them and they would work for them?

  2.  As it stands the proposal to make advance refusals statutorily enforceable is likely to have grave effects on some of my patients. Very many of my patients accept and benefit from care which they may not have anticipated when they were well. It is the nature of being ill that one ends up in circumstances that are not anticipated. The choices people make when sick often change substantially from those they made when well. In the obstetric field, birth plans have been widely used, but are routinely discarded in the heat of the labour ward. If they were legally enforceable they would most certainly cause death and disability in newborn children. Similarly advance refusals will cause unintended harm to some older people with incapacity.

  It therefore seems to me that legislating to make advance refusal statutory rather than strongly advisory risks the welfare of patients. If they are to be included in legislation then advance requests should also be allowed. I would ask you to consider changing the wording of the clause on advance refusals to "is or is not" and changing the title to advance statements.

  3.  An enormous amount of the care I provide is given to people without capacity. If we have to fill in forms for each and every treatment, or consult attorneys who may not be close, we will be unable to do the amount of work we do now in the time available. There is already a grave shortage of Old Age Psychiatrists. In Scotland, the incapacity legislation has made dental treatment and flu jabs more difficult for those with incapacity and it was found necessary to make the incapacity arrangements "permissive" (something which can be used if felt needed) rather than obligatory (to be used for all procedures). I would strongly urge that you do this in this Bill too. If you do not, then older people will be denied treatments and will suffer as a result. It is therefore very important, under Section 6(1) that you ensure that the majority of care can still be provided under common law.

  4.  In the "best interests" definition, there is no component which talks about "Good Clinical Care". Surely what is good medicine and what will work and help is a key consideration in what is in a patient's best interests, surely "Good clinical care" should be added in here.

  5.  The clauses about testing the validity of advance refusals also need strengthening. Perhaps amendments such as:

    1(b)  add "clearly" to read "clearly applicable to the treatment"

    4(c)  add "clearly" to read "clearly understood or anticipated"

  It is also very important that if doctors or others have "reasonable grounds to doubt" then they should not be bound by the directive.

  The reason for these suggestions is, simply, that in my clinical experience, if these strengthened safeguards are not included in legislation, then patients will suffer and go untreated as a result. A good example would be a stroke patient who wrote a directive declining stroke rehabilitation, or a patient with a urine infection who wrote a directive declining treatments other than pain killers. The out turn of these statements will often not be death, but prolonged and enhanced suffering which could be easily averted. These statements need to be advisory therefore. Relatives, nurses and doctors should not be made to stand back and watch patients suffer as a result of a directive, which was not made with proper understanding of the situation in which the patients find themselves.

  6.  The powers of attorneys also need very good safeguards. We know that 10% of all financial attorneys commit fraud at present and we as clinicians find this very, very hard to sort out. With the current enduring powers of attorney, bankruptcy automatically disqualifies an attorney. We need clear statements in the legislation that where an attorney does not appear to be acting in the best interests of a patient, then he or she be displaced quickly and easily. Otherwise attorneys who do not have the best interests of their appointees at heart, will quickly be able to ensure neglect, under-treatment etc and we as clinicians will find it almost impossible to sort this out.

  7.  Finally, I am concerned about the powers of advance refusals. They should not be allowed to require the stopping of relatively simple treatments (such as anti-convulsants or diabetic medication). Otherwise, patients will again end up dying in desperate circumstances. Perhaps an extra clause could be added to section 10(4) to this effect.

  I do hope these thoughts are helpful. I am very happy to discuss them further with the Committee if they so wish.

August 2003

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