Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 600-619)


15 OCTOBER 2003

  Q600  Stephen Hesford: Well, can I disagree with Baroness McIntosh because I think it is more fundamental than that. It is a very well-worn phrase in law, the reasonableness test, and the reasonableness test is objective. It is not subjective, it is objective. Your guy with the Ferrari would not get away with just an honest belief if it was not based on a reasonable description of the relationship that he had with his mother, so it is otiose. What you are arguing seems to me completely otiose, not necessary, because it is a well-worn phrase which is used in legislation up and down the country and has been used for a long, long time. What else is a reasonableness test other than objective?

  Mr Clements: This Act does not say that it has got to be reasonable. It says that the person must honestly believe that it is reasonable.

  Q601  Baroness McIntosh of Hudnall: Reasonably believe.

  Mr Clements: They believe it is reasonable. They are sincere.

  Stephen Hesford: Where are we?

  Huw Irranca-Davies: It is 6(1)(a).

  Q602  Stephen Hesford: There is nothing about his belief.

  Mr Clements: The person reasonably believes what he does—

  Stephen Hesford: It is not about an honest, mistaken or crazy belief, but it is reasonable belief.

  Baroness Fookes: Which would then be tested in a court. Who decides what is reasonable?

  Stephen Hesford: But it is often tested dangerously.

  Baroness Fookes: Precisely.

  Q603  Stephen Hesford: But this is an objective test; it is not a subjective test.

  Mr Raymond: If you are looking at the provisions of 4(4) which refers to "reasonably believes", it is the person making the decision who "reasonably believes that what he does or decides is in the best interests of the person concerned". Earlier in the clause there is a conflict with that, belief, because you have got, "the act must be done or the decision made in the person's best interests", the patient's best interests. In subclause (1) it is saying that the act must be done in the person's best interests, that is the patient, and in clause 4 there is a let-out because you are saying that the person making the decision reasonably believes that what he or she did was in the person's, the patient's best interests. So there is a conflict there in the wording, and I think you need to be looking at that and saying which rules. I think what we are saying is that 4(1) should prevail rather than 4(4).

  Baroness Barker: We have had one group of people in our deliberations who have attacked the word "reasonably" and a second group of people who have attacked the word "belief", so there is clearly a problem here. I have been thinking ever since they did that that what is not in clause 4 is any mention of the evidence as to why somebody believes something and reasonably believes something. I wonder whether, in your experience, a requirement to produce evidence to back up people would help.

  Stephen Hesford: But that is what happens now. That is the whole point.

  Baroness Barker: I am sure it does and I am sure it does in the courts, but the people who were raising these things were not lawyers. I am quite happy to take what you say as being a legal test, but it is not something that other users of this legislation appear to understand because we have had big representations on it, so I am trying to find a way—

  Stephen Hesford: But is that because they lack capacity?

  Chairman: It is the famous test of the man on the Clapham omnibus.

  Stephen Hesford: Yes, exactly and he applies here.

  Chairman: Exactly. I think probably we have had enough discussion on "reasonably" and we can now move on.

  Q604  Huw Irranca-Davies: I would like to tie a couple of questions together because they do lead on and, to let you know where I am heading, this is to do with human rights as they affect people who lack capacity where a judgment is made and also Article 2 of the Convention on Human Rights. Perhaps I can start by asking a broad question. In your opinion, is this draft Bill compatible with the Human Rights Act 1998 and if not, what is going to be used?

  Mr Clements: We have concerns over clause 7 and I think that those are accepted by the Government probably, that under clause 7 it effectively seeks to codify the common law of necessity. That I can, if it is necessary, detain you: but it says under the general authority that it does not authorise a person to restrict the liberty or movement whether or not he resists, under section 7(1), "unless the person reasonably believes that it is necessary to do so to avert a substantial risk of significant harm". There is no requirement there that there be immediate power and it is also again a reasonable belief. We do not allow police officers to reasonably lock people up if they reasonably believe it is necessary and it has got to be objective, so we could perhaps return to this argument where I think we both stated our views and we agreed to differ. So we have reservations about that and there are two reservations in relation to that clause. If it is a public authority that is doing that, then Article 5 of the Convention says that there must be "a procedure" by which this happens and there is no procedure prescribed here and that is the Bournewood gap problem. The other problem is what happens if it is an individual doing that because if it is an individual doing that, it may not be detention within the meaning of Article 5 because that has to be state detention, but it would be degrading treatment under Article 3 to lock somebody up. The court has repeatedly said that where somebody is exposed to risk of degrading treatment, Article 3, read with Article 1 of the Convention, requires there to be laws to deal with that—and there are no abuse provisions in this Act. Therefore, it seems to the Law Society that the absence of abuse provisions here are a problem. As we have heard, the Court of Appeal is trying to do its best, as they said in Re F, that since Parliament has not enacted any legislation, they will speak where Parliament has been silent and that is an unhappy situation where the courts are legislating to fill a gap, so we have reservations about that in particular. In our submission, we have pointed to a problem with appointeeships which I think is a clear violation of Article 6(1) in that the person who is the subject of an appointeeship, a social security order, has no recourse to an independent tribunal, which is probably a civil matter within the meaning of Article 6. We have also significant reservations about the issue of access to court. Under Article 6 of the European Convention people should have access to court—it is within the concept of a fair hearing—and of course people with mental incapacity have huge barriers, social and legal barriers, to accessing court. One of them is the fact that there is no legal aid available in the current Court of Protection and in the case of Airey v Ireland, it suggested that that would probably be a violation of Article 6 again, so I think that those are the major concerns we have, substantive ones, regarding that.

  Q605  Mrs Browning: Following on from that, last year the Government produced a draft Mental Health Bill which went out to consultation, but was not then presented in the Queen's Speech and there was some consideration that if the Incapacity Bill came forward first before a new Mental Health Bill, it would obviate the need for a new Mental Health Bill. One of the most contentious issues in that draft Mental Health Bill was about matters that surrounded things like the definition of "personality disorder" and new powers that might be given to detain people often for an indefinite period based not on any harm they had done anybody or themselves, but on a perceived situation, say, by a psychiatrist. Now, I did quite a lot of work on that at the time because I thought it was a Bill that was going to come forward. I was very concerned at the lack of definition of "personality disorder", it appears to be a spectrum, and I was very concerned about that part of the Bill for that reason. Is there anything in this Bill, including clause 7 which you have mentioned, which would allow that situation to progress in this Bill in the way that it was perceived and written in the draft Mental Health Bill which we saw last year?

  Mr Clements: I am not primarily a mental health expert, but we are fairly comfortable with the definition of "incapacity" in this Act because it is a functional definition rather than an organic definition, so I do not think that the problems as we perceived in the draft Mental Health Bill, of which the Law Society has been extremely critical, exist in this definition.

  Q606  Huw Irranca-Davies: Could I put a proposal to you which you may want to take up. You went through quite a range there of areas of concern with human rights compatibility and you have rightly highlighted those in your written submission. I am just wondering whether you would want the opportunity to come back with a further written submission expanding in some detail on what you consider. I know I am throwing this ball straight at you, but you certainly went through it in some more detail than you have put in your written submission.

  Mr Clements: I think the answer to that must be that we would be delighted!

  Q607  Huw Irranca-Davies: Thank you. If I can lead on from that to the controversial issue of Article 2 of the European Convention on Human Rights, that although the state has an obligation to protect life, an individual can choose not to uphold that right, is this your interpretation of Article 2?

  Mr Clements: Yes.

  Q608  Huw Irranca-Davies: How does this Bill sit with that?

  Ms Chapman: Perhaps I can deal with that. We were going to come to this with some later questions. At the Law Society we do not have a policy on this at the moment. We recognise that there are strongly held views on both sides. Our view at the moment is that it is vital to get this Incapacity Bill through Parliament and we think this would be facilitated by the broadest possible consensus behind the Bill. We realise this might not be possible if there is an argument or a debate around the use of advance directives. We would accept, we could live with the provisions on advance directives being removed from the Bill. We do not want this issue to damage the chances of us getting legislation in what we think is a really important area on the statute book. Having said that, it is the Law Society's position and if any of my colleagues want to comment on this from a personal point of view, that would be fine.

  Mr Raymond: There is nothing in statute on this subject and we are anxious to avoid a situation, as was suggested earlier, that we might be here to feather the nest of lawyers in the future by prompting a lot of case law. There are a lot of people in the country who want to make provision of this kind. It is a very difficult area, it is very emotive and people hold strong views on both sides, as has been said, and it is extremely difficult to bring forward a form of words which manages to produce the answer which one body of opinion wants without crossing that very thin line of what is and is not acceptable. It has occurred to us that it might be possible to have a standard form of words which would be produced in a way similar to the enduring powers of attorney form which would be acceptable and would be accepted by all sides, but whether that is living in cloud cuckoo land, I do not know, but that would be an ideal situation where we could have a standard form of words. I do not know if we could reach that, but that certainly would satisfy one body of opinion.

  Q609  Lord Rix: I personally believe that an advance directive or a living will is possible to write which is sufficiently liberal to allow the medical profession and your relatives, considerable latitude when it comes to the last days of your life, I also believe that advance directives to refuse treatment could be worded in such a way in the Bill as to make them acceptable to 90% of the public, if not everyone, and do remember that advance directives are voluntary. You would like to see them removed entirely from the Bill, would you?

  Mr Raymond: No, that is not what I am saying.

  Ms Chapman: I think as the Law Society we are not saying that. What we are saying is that we would not like to see the law flounder on this issue and if they were removed, we could live with that rather than seeing this ending up causing the Bill not to proceed.

  Mr Raymond: I was expressing a personal view, that perhaps if advance decisions or advance directives, whatever you call them, proceed, we would want to have it as non-contentious as possible because we would not want to see a situation where every time it had to go to the court to decide because that would not be a satisfactory solution.

  Q610  Lord Rix: I would agree with that, but would it be possible, and I have given you some very rough wording just now, to take that away along with submissions which have been made by, I think, the Terence Higgins Trust and others and to come back with a response to this Committee with changes which you would like to see regarding advance directives on the face of the Bill?

  Mr Raymond: I think the difficulty is, as has been said, that the Law Society would not want to be making a statement on behalf of the profession about advance directives, but I think if we put forward personal views, that would be different, and we are very happy to do that on a personal basis.

  Q611  Chairman: Would you agree that if there was an approach, it would be better dealt with in a code of practice rather than on the face of the Bill because a legal challenge could lead to judicial review, whereas a code of practice could indicate the sorts of things that should be included in that and it would be safer?

  Mr Raymond: I think the difficulty, Chairman, is that at the moment we have a situation where advance directives have no statutory authority and people who want to make such a directive do so in the knowledge or the lack of knowledge of certainty. They do not have the ability to say whether a particular doctor would carry out their wishes or not because some doctors will accept what the patient has said and others will look at the Hippocratic Oath and say that they have to preserve life at all costs. It is very difficult at the moment and, therefore, I think if there was something in the Bill—this is a personal view—that would make that position clear.

  Q612  Baroness Fookes: One could place the directives on a statutory basis inasmuch as you include them, but they would not necessarily have to be obligatory. What about having them in an advisory form?

  Mr Raymond: I think that would be fine. I have no problem with that personally.

  Q613  Baroness Knight of Collingtree: If that is accepted, could we always bear in mind that there is another side to this? There may well be patients who do wish to be kept alive and that if one side was to be catered for, then the other side, a card-carrying person who says, "If I am unable to speak or am in a coma, I do want to be kept alive", would that not be a good thing to bear in mind at the same time? We are not just looking at one side.

  Mr Raymond: No, or you could look at it that people who wanted to have an advance directive would have to opt in and everybody else would have been deemed to have opted out.

  Q614  Baroness Knight of Collingtree: That was not the question I asked.

  Mr Raymond: I know!

  Baroness Knight of Collingtree: It would be better if you stuck to what I asked you as opposed to what you would like me to ask!

  Mrs Browning: I am a little concerned about what Baroness Knight has just said because doctors, one imagines, I am pretty sure, would do all that they could to preserve life, that is the Hippocratic Oath, but there does come a point at which doctors have to use their judgment, for example, as to whether to give an operation to somebody who quite clearly may not benefit from that operation, but would be kept alive as a result of it. I just wonder how difficult that would be, and kept alive to what extent? We all share the concern about the withdrawal, say, of food and liquids. I think it goes without saying that there has been a lot of debate about that aspect, but in terms of medical intervention, at what cost to the individual, because there may well be procedures that could be carried out if you have somebody back to theatre for whom clearly another operation is not going to work. It might keep them alive for another fortnight, but when do you actually stop chemotherapy or when does the chemotherapy itself become part of the problem?

  Baroness Knight of Collingtree: But is it not the case these days that doctors no longer swear the Hippocratic Oath and it is not part of their training and some of them who do not accept it do not have to agree to it? I think if we imagine that all doctors are there with the Hippocratic Oath firmly in their backpack, we are wrong because they no longer sign up to it.

  Q615  Chairman: Perhaps we should not debate this between ourselves! There was the example in the press recently of somebody whom I know very well who is extremely severely disabled and she was very, very ill with pneumonia in hospital, the doctors assumed she would not wish to be resuscitated because her quality of life was so poor, not with the pneumonia but with her disability. Of course she insisted that she wanted to be resuscitated and that is an example of what kind of impact this might have where it is the reversal of an advance refusal and it is an advance insistence. Is that right?

  Mr Clements: There have been a number of disabled colleagues that I have, who found the Diane Pretty case was actually very harmful because there was some suggestion that we look down on people like that as though their life is not worth living effectively. Who are we to say? I want to reinforce what my colleague has just said. The Law Society was instrumental in trying to get the Law Commission to look at this area in 1995. We are dealing today with a group of people who do not vote, who do not have any political clout, who have really no legal rights whatsoever and it is of tremendous credit to Parliament today that it is actually legislating because there is no huge, overwhelming demand for this, although it severely affects the lives of countless thousands—indeed—of millions of people. Ever since this Bill was first drafted by the Law Commission, we have been plagued effectively by this issue of euthanasia and we are so desperate to get at least some aspects of this Bill that we would really forgo this aspect, although individually we have views. As the Law Society, this has been our constant aim for ten years and we have come so close and then again we have this debate where reasonable people on both sides can have views.

  Q616  Jim Dowd: On this idea of advance refusals and now, as the Chairman has said, advance insistence, I put this proposition to you which is that I believe that the law should be no more intrusive in people's lives and certainly no more than the majority of the population thinks it need to be. If we have two categories, both advance refusals and advance insistence, will not the bulk of the population who would otherwise not be affected by this measure have a choice to make? Surely the position that we are admitting, unless there is strong evidence to the contrary, is that you would expect to have whatever medical treatment is possible rendered to you without having to sign a piece of paper in advance to declare it?

  Mr Clements: Yes.

  Q617  Baroness McIntosh of Hudnall: I wanted to ask you whether you thought that the provisions of the general authority increased the likelihood of the abuse that you referred to earlier in your evidence as endemic, the abuse of people with incapacity. I think what you have said since has indicated that on the whole you do think it is likely to increase that risk. Would that be a fair assessment?

  Mr Baker: It is impossible for us to say because so much of the evidence which we receive is anecdotal. The only areas of abuse that we come across are the ones where there is evidence that is actually brought to the lawyers. To say that the general authority will increase abuse, we cannot say for certain.

  Q618  Baroness McIntosh of Hudnall: Well, can I put it to you slightly differently then because I think this perhaps is an issue that we should draw out a little bit. You have said in various ways this afternoon that you feel that the Bill is insufficiently protective of the rights of those who are being cared for whilst creating a general authority for those doing the caring. Would it be fair to say that if there were a balance between the general authority, on the one hand, and some protocol that increased the protection, on the other, that, firstly, you would welcome that and, secondly, that it would at least not increase the risk of abuse insofar as you can assess that risk?

  Mr Baker: It would be difficult to see how it would increase the risk if the fraudulent abuse has already taken place. If there are safeguards in place to effectively counter that abuse for general authorities, in essence, it has got to be a good thing because it means that those may be coming to the actual attention of other people to be able to be dealt with, whereas at the moment the problem we have is that nobody has any idea of what abuse is taking place. It is all anecdotal. The Master of the Court of Protection will say, "We have no idea how many powers of attorney are even out there". With regard to the general authority, the problem I do have, however, is how will we know when somebody is acting under a general authority? We have no idea and there is no way of collating that information together.

  Mr Clements: I think we do agree with what you were saying, that if there are these counterbalancing protections, then we think that the general authority would be a good thing and would not lead to further abuse and would apply to six million carers in the UK.

  Chairman: Perhaps we can move on to Question 9.

  Q619  Jim Dowd: Having spent quite a time going over "reasonable" and whatever that means, we come to another equally contentious word which is "appropriate". Is it appropriate for a non-medically qualified attorney to override the professional clinical judgment about medical treatment for the person on whose behalf they exercise that attorney or should they just be consulted by the clinician?

  Mr Raymond: At the risk of giving what has been classed as a standard lawyer's answer, I would say sometimes yes. It is possible that the attorney will be sufficiently close to the patient to know of the patient's wishes rather better than the health professional. The problem with leaving such matters entirely with the healthcare professionals is that some of them do not necessarily look at what the patient wants, but they look at what they think is best and they do not necessarily take account of the patient sufficiently. I am trying to keep away from advance directives and things like that, but we are back, I think, really to the situation where the patient wants to move from their own home and I have had a number of cases of this. The doctor then says, "You've got to go into hospital", and the result of that is that there is a visit to A&E, all sorts of tests are done and in one case the patient died ten hours later after leaving home. Clearly in view of what was put on the death certificate, the patient was terminally ill and it should have been fairly clear that that was the case, but instead of taking account of what the patient wanted, which was to stay in his own home, the doctor insisted very forcefully in this particular case that the hospital visit was required and I think that sometimes the attorneys will have a better idea.

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