Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 560-579)


15 OCTOBER 2003

  Q560  Mrs Browning: Would you wish to withdraw that?

  Mr Clements: I accept what you say on that issue.

  Q561  Baroness Fookes: Inelegant or inaccurate?

  Mr Clements: Inappropriate.

  Q562  Huw Irranca-Davies: I am still unclear. You mentioned earlier on the general principles. If there were general principles that were underwriting this Bill in a similar way to Scottish legislation then those could be fully applied regardless of age, they are in effect general principles to apply to any human being and yet, if I understood you correctly, what you are suggesting is that there is a different approach amongst these two different user groups and those general principles need to be written differently and framed differently for those two groups. I may be misunderstanding you.

  Mr Clements: Again, I may have been inelegant. What I was trying to say there is that these two groups inevitably are dealt with by the Bill. I think the Bill has to deal with a wide spectrum of incapacity problems. Somebody at one end of the spectrum who really has very limited capacity due to a progressive form of dementia and is elderly and a younger person that is born with learning disabilities you would apply the same principles to but the outcome would be different and that must be the case.

  Q563  Mrs Humble: I am afraid I am still not clear what you are saying here. Why should the outcome be different? Taking each decision separately and first of all determining whether or not an individual has capacity and then looking at whether or not they have the capacity to make a decision in that particular circumstance, how can the outcome of applying the best interests principle be different for people whether they were born with a disability or acquired it through accident or illness?

  Mr Clements: I have accepted that that was inaccurate. That distinction between those two groups was inappropriate for us to put in the submission and I have accepted that. What happened is that when we made the submission we put in two groups, which was the one that had no capacity effectively and the one that had only limited incapacity and those two groups are dealt with in the Bill. The inclusion of the acquired deficiency I think was unhelpful.

  Q564  Laura Moffatt: We have talked a little bit about the general principles today and in actual fact we have spoken a lot about it in this Committee and we are really trying to make sure this Bill is in good order. Could you give us any other examples from any other jurisdiction or the Scottish Bill as it exists that should be included or that you believe would strengthen this Bill? As I have said, we have spoken about the fact that you much prefer having some sort of general principle over best interests. Is there any other example you can give us?

  Mr Clements: We have not found any from any other jurisdiction in our searches. I am not saying it is exhaustive but it has been quite thorough.

  Q565  Laura Moffatt: Could you say where?

  Mr Clements: We looked at the jurisdictions of the United States, Canada and Australia and New Zealand. As I understand it New Zealand was the blueprint for the Scottish legislation and is to be preferred. We accept the best interests list that appears in this Bill and we welcomed it when the Law Commission published it and effectively it is the same as the Law Commission's. Having had the benefit of what has happened in Scotland, there is a convincing case for the inclusion of the "no order" principle, which effectively is you should not make an order unless there ought to be one, that the least restrictive interference will be appropriate. The other one that I can think of which would appear in the Children Act is the issue of delay. The general principle of delay operates against the interests of someone: it is another general principle.

  Q566  Laura Moffatt: In your very helpful written submission you suggest some different ideas for the Bill that come from The Law Society and they are not taken from any other Bill apart from the general principle issue from the Scottish Act, is that right?

  Mr Clements: We looked at other areas, but insofar as it has been formed by anything substantial, it has been from the Scottish experience.

  Q567  Baroness Knight of Collingtree: Coming back to this question that you raised of the difficulties of the varying degrees even at varying times of people to make decisions, I would like to ask you if you think that the draft Bill as it stands places sufficient emphasis on the need to deal with that particular difficulty and the need to facilitate the communications of people who do have incapacity?

  Mr Clements: The Scottish Act is slightly stronger on this. We very much welcome what is in the Bill, it is very much in accordance with what the Law Commission did. The Scottish Act has a line and a half more about the efforts that one should make to communicate and we would welcome that expansion. We welcomed the fact that in this Bill there is that emphasis but we think it could be tightened up a bit.

  Q568  Baroness Knight of Collingtree: This follows something about which you will not be aware but it was something that was said to us yesterday. In your submission you say a person should be free to take a risk, to make a capricious or bad decision or one that does not appear to be in their best interests so long as their capacity is not disproportionately impaired. We need to have a little clarification of that bearing in mind that we had some evidence yesterday that is rather different from that.

  Mr Clements: I think the classic example will be the elderly frail person that wants to live at home and everybody says that it is in his/her best interests that he/she goes into a residential care home, or the family that is caring for somebody with learning disabilities that has views on those situations. These people should be allowed to take a risk.

  Q569  Baroness Knight of Collingtree: Do you think, for instance, to cite a case that was put to us yesterday, that if someone meets a visitor at their door and after a short conversation writes a cheque for £5,000, there ought to be some level of interference with that person's doling out of their own funds or not?

  Mr Clements: Yes.

  Q570  Baroness Knight of Collingtree: You think there should be some interference with it?

  Mr Clements: Yes. The issue here is what is proportional in any situation. It is part of the human condition to take risks and that is what makes our lives fulfilling and enjoyable. I fail to understand why the right to take risks and to do things on a whim should be taken away from one group of society, but obviously there are certain things that are outside it. If somebody has not got the capacity to make a decision about £5,000 then it should be a decision that is outwith their ability, they lack the capacity to do that.

  Q571  Baroness Knight of Collingtree: You seem to be facing both ways on this. Is it not the case that a person has a right to dispose of what is their own in the way they think fit even if we do not think it is fit?

  Mr Clements: Precisely. My colleagues understand money much more than I do, but what I would say is that of course you should have the ability to dispose of your bounty as you wish as long as you comprehend the implications of that situation. The capacity you need to give away £5,000 at law will be a different test to the capacity you would need to give away £1,000 or £5, but providing you have the capacity to do that we should allow people to do it. We all know lots of very mentally capable people who use their money irrationally.

  Q572  Baroness Knight of Collingtree: Do you think the Bill actually does enough to make it easy for decisions that people make to be properly conveyed? Is it easy enough as it is or should we do more?

  Mr Clements: We should do more to facilitate communication with people with that mental capacity, yes. As I say, the Scottish Act has an additional part about trying to engage in communication and improve communication. I think it is the experience of all the people who have come into contact with learning disabilities that you need an enormous amount of time to understand the level at which they are functioning and that is something that cannot really be over-estimated, the amount of time you need to spend with somebody which often lawyers do not have and that needs to be stressed in the Bill.

  Q573  Mrs Browning: I just want to test where you are placing the balance between the right of the individual to take risks and the responsibility that may rest with social services, close relatives and others particularly in the case that you yourself gave us of the elderly person who wants to stay at home and categorically refuses to go into residential care. We all know feisty old ducks, God Bless them, who say, "I'm saying here and I don't care what the risk is, I'm going to carry on", and that is fine, they clearly have made a considered decision about it. More common is the case of the elderly frail person with a deteriorating ability to feed themselves properly, an increasing risk of falling, perhaps a history of starting to fall and sometimes when they have the little buttons round their neck and they do fall, they forget they have got one so they just lie there on the floor until somebody happens to find them maybe a day or two later. Where is the balance there?

  Mr Clements: It is very difficult to draw, is it not?

  Q574  Mrs Browning: It is.

  Mr Clements: What I would always say is that the ability to have somebody make a capricious decision is not unconstrained in the sense that I think we all have a duty to cajole and give advice and give strong views to people like that. With many of my clients I would say that this is ridiculous. It is not unreasonable to cajole somebody, to give them advice because we influence all the people we know about the decisions they are making. I would not say to my daughters, "It's up to you, I am not going to give you any advice", and I think that we have the right to do that to people with learning difficulties and elderly people as well. We can give them robust advice and try and cajole them to do what we want but ultimately it is their decision.

  Q575  Lord Rix: You have concentrated a little bit on money and elderly people in terms of freedom of expression and freedom to spend it. Suppose a decision is taken by a person to live in the utmost squalor, with animals around the place being fed all the time and all the other things which happen when you live in conditions which could adversely affect your health, if that person appear to be in full control of their faculties, how do you begin to gauge when you have to take steps to improve matters with regard to their living conditions?

  Mr Clements: You are asking some of the very most difficult questions and they are probably social work not legal questions. Under the National Assistance Act, section 47, there is power for authorities to intervene in situations where there is an environmental health problem. As you may well know, the research shows that when local authorities do intervene to remove frail people from squalor situations they tend to die very quickly.

  Q576  Lord Rix: They may not be a frail elderly person, they may well be someone in middle years, even younger.

  Mr Clements: Most social services directors would say that they have used their powers under section 47 in situations where it was the only thing they could do and they did effect positive change. There is therefore clearly a need for a power of that type.

  Q577  Lord Rix: And you believe that this Bill allows that to happen?

  Mr Clements: The Bill does not affect the National Assistance Act. Presumably this Bill would leave that intact because these people would have capacity and this Bill is not dealing with people that have capacity, therefore the local authority would not be able to use any other power than the National Assistance Act.

  Q578  Mrs Browning: Is it not ironic that in those sort of cases—and we have all seen them—the RSPCA would step in to protect the animals long before anybody would step in to protect the person?

  Mr Clements: Yes.

  Q579  Mrs Browning: Is there not something rather worrying about that?

  Mr Clements: There certainly is.

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