Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 672-679)


21 OCTOBER 2003

  Q672  Chairman: Thank you all for coming. You heard all the housekeeping notices at the beginning so I will not repeat them. We are not preparing a White Paper on mental incapacity; we are working on a Draft Bill and that is why the questions you have seen have been structured around the structure of the Bill. Would you like to introduce yourselves?

  Mr Allen: My name is James Allen. I am the development director with Care UK. We provide residential and nursing care for people with mental health problems and disabilities.

  Mr Cramp: Simon Cramp. I am a trustee of MENCAP and a member of New Dimensions. I am also an independent consultant.

  Mrs Pearson: I am Mary Pearson. I am with RESCARE and I am the mother of a 23 year old daughter with Downs Syndrome.

  Dr Brook: I am Maurice Brook. I have a 51 year old severely mentally handicapped son, mental age around 3 years. I am a joint honorary vice-chairman of RESCARE. I am also a receiver in the Court of Protection for a severely mentally handicapped man who is not a relative.

  Mr Sugden: David Sugden, a joint honorary vice-chairman of RESCARE and I have a handicapped daughter who is 35 years old and being very well looked after, thank you.

  Q673  Baroness Wilkins: What do you not like about the Draft Bill?

  Dr Brook: Very little. We like the framework it sets. If you push us to say what we do not like, I suppose we are echoing what was said earlier, but we have a certain amount of unease about a recognition that those who are mentally incapacitated from birth, or virtually from birth, have some needs that are different to the majority of people covered by the Bill who have long periods of perfectly normal capacity. That can be dealt with in the codes of practice.

  Q674  Baroness Wilkins: That is how you would like to deal with it?

  Mr Cramp: I would like to thank the Committee for inviting us here today. I welcome the opportunity to speak as someone who supports the Bill and necessarily supports decision making and encouraging good communication in advocacy and human rights. If I were making decisions for somebody who could not do it for themselves, I would expect to be held to account. My main point is that we desperately need this Bill and I feel passionately that it is not an opportunity to be missed. Some organisations think that if the Bill were to become law it would take away more decision making powers for people. I feel this is not the intention of the Bill. There is a possibility in practice that this might be an outcome for some people but there is the general authority as a provision. At the moment, the general authority to act is too wide. Carers can decide almost anything without having to take formal authority. It is too difficult for someone who feels that their wishes have not been listened to to challenge decisions taken by someone else. I do not like the name of the Bill. It should be changed to "the Mental Capacity Bill" to reinforce the idea that it gives people the right to make their own decisions. I do not like the fact that independent advocacy is not included on the face of the Bill because it is putting people in jeopardy. Thank you.

  Mr Allen: As a provider of residential nursing, I have four issues. There is the issue about conflict resolution. There is not enough emphasis in the Bill about the delays there might be about the resolution of conflict between various policies. There are concerns about maintaining independence. That is key to everything we do, providing care for people with mental needs. We have some issues about how to provide care that represents the best interests of individuals in a residential setting, because we have to consider the health and safety implications of a range of people within our settings. There is also an issue about advocacy which is not mentioned in the Bill. We feel that some conflicts can be avoided and resolved through advocacy.

  Q675  Baroness Knight of Collingtree: Some, if not all of you, were here in the previous session and you will have heard what was said about the general authority part of the Bill. I would like to ask what you think about this. Particularly, would you tell us about any problems that you think might occur because of the general authority? There was clearly very strong feeling among those who have just given evidence and they did make some suggestions. All of us would like to hear your comments on what they had to say and what you feel about this.

  Dr Brook: There was some misunderstanding about the nature of the general authority in the implication that it would be vested in an individual, whereas our interpretation of the Bill is that this is dealing with day to day decision making by any person who is delivering care. There could be many people involved. It is regularising for their benefit the position which obtains now in common law. We do not see the general authority as a danger, providing the person is committed to assessing whether the individual has the capacity to make a particular decision before they exercise this general authority. They will then be answerable afterwards and have to explain what their reasoning was in reaching that decision. We do not see any problem in the application of the general authority. We think it should be welcomed, certainly by paid carers who are sometimes in an anomalous position.

  Mrs Pearson: I think it is important also to realise that we represent the families of people who have a severe learning disability, life long very often. The people we heard earlier have, as far as I could see, a lot of capacity. It is understandable that they could feel threatened by this Bill but, for the people we represent, I do not think that is the case.

  Q676  Baroness Knight of Collingtree: You seemed to give the impression that once a person was defined as being incapable of making their decisions that was a permanent thing. Is that the case or not?

  Dr Brook: As the Bill makes plain, it refers to a particular decision in a particular situation. For example, someone wanting to go out when it is raining inadequately clothed. A carer would very properly under the general authority make sure that they had protective clothing on before they went out. The individual might appear to be resistant to it.

  Q677  Baroness Knight of Collingtree: That was not quite the point I was making. I just wanted to know whether you felt that, once a decision that a person was incapable of making decisions about his own life was agreed, that could never be gone back on.

  Mrs Pearson: There is a reality about whether people can make a decision.

  Q678  Baroness Knight of Collingtree: I appreciate that we are dealing here with more severe difficulties and that may be the basis of the comments made earlier.

  Dr Brook: There is a range of incapacity from those who are virtually able only to be fed and give very little response to anything to those who can indicate a number of decisions. You do not classify an individual at any stage in the process, other than by having reference to their behaviour and their apparent needs. We do not have a legal system any more like we used to for classifying people ineducable or not, for example.

  Q679  Baroness Knight of Collingtree: Do you think the suggestions made, for instance, about the possibility of a person complaining and the difficulty under the law of that happening are a problem or not?

  Dr Brook: I do not think that is something the Bill is here to address. Most organisations now have proper complaints procedures. If an individual is having difficulty in gaining access to the complaints procedure, there are other ways of dealing with it.

  Mr Cramp: I would slightly disagree with my colleagues about complaints because of access. Not everybody can reach the papers you have in front of you. There are communication difficulties. You could have a situation where somebody has not made suitable provision for complaints. That is the first problem. If I can come to the question of the general authority, I have the difficulty that it almost allows you to do anything.

The Committee suspended for a division

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