Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

26.Memorandum from Professor John Williams, Department of Law, University of Wales, Aberystwyth (MIB 564)

  1.  My reason for submitting evidence to the Joint Committee arises out of my professional interest in the area of social services law and in particular the law relating to vulnerable adults. I have published a number of articles on vulnerable adults in academic journals such as the British Journal of Social Work, Journal of Social Work, Journal of Social Welfare and Family Law and the Criminal Law Review as well as a number of essays in edited collections. In addition to my teaching at the University in Family and Child Law, and Medicine, Ethics and the Law, I also undertake professional training for social workers and other social care professionals for local authorities and the voluntary sector. I am a training consultant for the British Association of Services for the Elderly (BASE). [1]

  2.  The draft Bill is welcome and very timely. Incapacity is a growing area of concern for social work practitioners and most feel uncomfortable working under the existing system. Whereas the common law on decision making for incapacitated people has served us reasonably well and facilitated decision making for incapacitated people, it is doubtful whether it contains sufficient safeguards to ensure that it does not violate the European Convention on Human Rights (ECHR), especially the article 8 right to a private life. The recent case of Re F (Adult Patient) illustrates the extent to which the courts have to go to provide adequate protection for those who lack capacity. [2]My comments concentrate on specific aspects of the draft bill; they are made in the context of general support for what the bill is seeking to achieve.

  3.   The definition of legal capacity: The definition in clause 2 quite properly develops the common law definition, but gives legal force to what has in the past merely been good practice (which anecdotal evidence suggest is not always followed). Sub clauses 2(2)-(5) are particularly welcome. However, one situation not covered by the definition are those cases, often abuse cases, where a vulnerable person probably does have capacity (it may be marginal), but is subject to undue influence by an abusing carer, relative or professional. The dilemma for professionals is that if the person refuses help and support, there is little that can be done because the law will deem them to have capacity. It is interesting to note that the heading for the section is "Inability to make decisions" rather than incapacity. Is it intended that clause 2(2) should include extreme (and I emphasise extreme) cases of undue influence? Would such cases come within clause 2(1)(c) and (d) as cases of inability to use the information or communicate the decision because of intimidation? Clearly the provisions of clause 1 mean that they would not unless it arose from an impairment or disturbance in the functioning of the brain or the mind. I would suggest that some thought be given to extending the remit of the bill to include extreme cases of undue influence, with the necessary safeguards included to make it compatible with the ECHR. This would require extending the definition in clause 1.

  4.   Best interests: Placing the best interests test on a statutory basis is welcome and will ensure some consistency in decision making for incapacitated people. It is essential that the contents of clause 4 are disseminated widely by health and social care professionals. Undoubtedly, this will done by professional bodies and employers. The more difficult group to cover is the one consisting of people using the general authority under clause 6. Will such people, often informal carers, be aware of the meaning of "best interests"? There may be a tendency to understand it as paternalistic and always doing what is "sensible" when in fact the incapacitated person may, during a lucid period, made it clear that they do not want to do what is sensible. There needs to be widespread dissemination of the "best interests" test. I am not entirely happy with the term "best interests" as it does conjure up the image of paternalism. A less concise, but in my opinion a more acceptable term, would be "in the interests of promoting the human rights of the person". This would suggest that a liberty based calculation has to be made which will embrace both the need to protect, but also recognise the individual's autonomy. I accept that the individual's autonomy may be seriously compromised by their incapacity; however it must still be part of the calculation.

  5.   The general authority: Placing what de facto happens on a regular basis on a statutory basis is welcome and will provide protection not only for the incapacitated person, but also the person who has assumed the responsibility. My main concern is that in some cases this may well give a false sense of legitimacy to something that is inherently abusive. Will abusers be able to hide behind the general authority and effectively gain "lawful" authority for their actions? Again anecdotal evidence suggests that enduring powers of attorney and appointeeships are being used in this way. I appreciate that given the possible extensive use of the general authority, close regulation is impossible. The proposed criminal offence in clause 33 may reinforce the duty to act responsibility. However, I remain concerned that what is a well intentioned idea may in practice be used as an instrument of abuse. Is it possible to strengthen the safeguards? Should people using the general authority be required to keep very simple accounts? Is it possible for there to be a "light touch" (very light—I appreciate the resource implications) registration process for people using the authority?

  6.   Advance decisions: It is trite to say that this is an immensely complicated and sensitive area; there is a need to inject some legal certainty to protect patients and doctors. Obviously it is important that people are aware that the proposals are not just about life sustaining treatment but of more general application, although I suspect that such treatment will be the one that attracts media attention. In general the provisions of clauses 23-25 are good. My one reservation is the wording of clause 24(4)(c). Does this give too much scope for medical practitioners to override advance decisions? It is understandable that doctors may wish to save life or promote wellbeing (the recent case of Ms B illustrates this point). My concern is that the wording of that sub clause gives considerable scope for "rewriting" the terms of an advance decision, for example by stating that medicine has advanced since the advance decision was made and the patient would surely have wanted the treatment. Presumably such decisions by doctors would be subject to the Bolam test—would a responsible body of medical opinion have come to the same conclusion? This may undermine the effectiveness of advance decisions if it is interpreted widely by doctors. Firmer safeguards are required. A related point is whether advance decisions should be time limited during the capacity of the person; it may be sensible for people who still have capacity to update them (say every five years) to ensure that advances in medicine are taken into consideration. Alternatively, an incentive to update may be included whereby the working of clause 24(4)(c) could give doctors more scope to deem the advance decision to be non applicable after (say) a five year period. This would allow them to have greater regard to changed circumstances, namely new advances in treatment that the person could not have been aware of at the time of making the advance decision.

August 2003

1   The views in this paper are my own and do not represent those of BASE. Back

2   I enclose a copy of an article published in the Journal of Social work which addresses my concerns on the decision in relation to vulnerable adult protection laws. Back

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