Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 704-719)


22 OCTOBER 2003

  Q704  Chairman: Perhaps I could start by saying good afternoon and thank you very much for coming in. We are grateful for the letter we had of 16 October and the departmental papers that were attached to it. The session, as you know, is open to the public and is being recorded for broadcasting on the Parliament channel at 6 o'clock on Sunday evening. There will be a verbatim transcript, which you will be asked to check. The proceedings will have to be adjourned if there are divisions in either House. If you wish to follow up any points which either we do not reach or you wish to expand on any points made in the session, you can write to us after the meeting, but we need to receive those comments within a week of today. We remind all our witnesses that we are here not to write a White Paper on Mental Incapacity but to report on a Draft Bill, and therefore all the questions are structured around the Bill. Would you like to introduce yourselves and your officials, and, if you wish, to make an opening statement.

  Lord Filkin: I am Geoff Filkin, Minister at the Department for Constitutional Affairs, taking the Bill forward, with my colleague, Rosie Winterton. The DCA has the specific formal lead, and of course in fact took over much of the excellent work Rosie Winterton did when she was a Minister in the Lord Chancellor's Department.

  Ms Winterton: Rosie Winterton, Minister of State at the Department of Health, obviously working closely with DCA on the Bill. I am delighted that it is before us, as you can imagine given the input I had in a previous existence.

  Mr Sieff: I am Adrian Sieff, and I am the Head of Mental Health Legislation in the Department of Health.

  Ms Johnston: My name is Claire Johnston. I am Head of the legal team at DCA working on the Draft Mental Incapacity Bill.

  Q705  Chairman: Do you wish to make an opening statement?

  Lord Filkin: Perhaps briefly, just to position the Bill in terms of the DCA's wider programme. I also have one or two comments on the draft nature of the Bill and the scrutiny process. The Bill fits very strongly within the vision for the Department for Constitutional Affairs of trying to ensure that people, especially those who are particularly vulnerable, have their rights protected in society. It would be hard to find individuals who have a greater need for effective protection than the people we are talking about in this respect.

The Committee suspended for a division.

  Lord Filkin: The process of the Draft Bill I think allows the involvement of wider interest groups in society in important and difficult areas at a time when the Government is not completely locked on to detail. It therefore allows a process of testing the issues and the ideas in ways that probably increase the potential influence of wider society, and it is better that it is done then rather than during the passage of the Bill itself, when inevitably governments tend to become rather entrenched in their views. Therefore, I think that process is in principle healthy. What I have heard is that the way the Committee has been facilitating that engagement has really come to life and allowed very vigorous engagement of many people outside who would wish to put their views on this area. We are really pleased that the pre-legislative scrutiny process through this Committee is so much coming alive.

  Q706  Chairman: What are the Department's plans for introducing the Mental Incapacity Bill as a result of what you are hearing? Do you think there will be much more preparation and consultation required before a Bill can be presented to Parliament? We had been working to a very tight timetable on the expectation that the Bill would be introduced early in the new session.

  Lord Filkin: There are a number of areas which I am sure we will touch on later. The lines of inquiry and the probing and the evidence have helped us to develop our thinking. We have not been static on this. We have, in a sense, started to reflect on areas where there is a need for either greater clarification or deepening how we would actually implement it. Above all—and I think our joint presence illustrates that—it is very important that the Department for Constitutional Affairs and the Department of Health work on the Bill as joint chaplains, which is our stance, both in terms of getting the law right but also thinking through how it would be applied in practice. I cannot say when or if there will be legislation, but there is certainly a vigorous will within both departments to try to move forward on some very important and complex issues.

  Q707  Chairman: There has been extensive consultation over the years on this subject. Are you forming the view that following on the publication of the report you will need even further consultation with interested parties before you can begin the move of introducing the Bill?

  Lord Filkin: In my experience, you never totally stop consulting. I do not think after this there will be a White Paper, but clearly, in the light of this, we took a view on something that needed further development. If I can give you a clear instance, there has been some vigorous debate about the general authority. The way government works well in my experience is that you try to at least engage people who are interested in that before you finally commit yourself to the ultimate detail of the Bill, and that would be the stance I would want officials to take on it, as an interactive process.

  Q708  Chairman: A question for the Minister of State: we know the Department of Health is considering a Draft Mental Health Bill. If it were the fact that this Bill, when it comes to Parliament, was implemented before you were able to introduce a Mental Health Bill, would the provisions in the Bill link with the present 1983 Mental Health Act? If they were running alongside each other, would you foresee any problems? Should we be taking that into account in our thinking about this Bill?

  Ms Winterton: First of all, with the Draft Mental Health Bill that we published last summer, we received something like 2,000 responses to the consultation. We are working with stakeholders still to refine it and make sure that we are taking account of some of the responses that we have received to that. However, we are obviously committed to reforming mental health legislation and we will publish a Bill as soon as finance and parliamentary time allows. In the mean time, we are working very closely with colleagues in the DCA to make sure that not only is the 1983 Act compatible with the Mental Incapacity Bill but also that the future Mental Health Bill is as well. Of course, they do address two quite separate issues, one dealing with people who have lost the capacity to consent to treatment and the other dealing with people who do not wish to consent to treatment but for whom treatment is felt to be a necessity.

  Q709  Chairman: What about the Bournewood Gap, as described?

  Ms Winterton: That is obviously something where we believe that the law as it currently stands is sufficient, but we do want to look at whether we could take the opportunity of new legislation to provide people who were in that kind of long-term situation without capacity to be able to have access to some of the same rights—advocacy, nominated person, mental health review tribunal. There is an issue about where that would most satisfactorily lie, whether it would be within the Mental Incapacity Bill or the Mental Health Bill.

  Q710  Mrs Browning: We are waiting to see what the European Court has to say on Bournewood. You seem to indicate that you feel the Bournewood case was the case of a person who should have been detained, although it was a voluntary detention, but in fact, the case there was something which went quite against the spirit of this Bill, which is hopefully to empower carers and people close to that person to advocate for them. We have heard a lot about independent advocacy, and no doubt we will come on to that, but surely the point about the Bournewood case was that the carers who knew that person best were rejected by the so-called professionals all the way along the line, and that is what caused the case ultimately to come to court. How do you see this particular Bill rectifying that particular situation? It has been said to us that this is a charter for parents and carers. Where do parents and carers come into the Mental Incapacity Bill, particularly in respect of those carers in the Bournewood case?

  Ms Winterton: If there were a situation like that, one of the things I would expect the Court of Protection to do at quite an early stage would be to decide whether, for example, a deputy might be appointed, because obviously in that case there was not a lasting power of attorney with somebody else, and in terms of the basic principles of the Bill that the person who would perhaps be appointed as a deputy would have a stronger ability to intervene in the care plan as well. Within that, I think the Bill also says that the patient's best interests should always be taken into account, and carers in that situation would have a far greater input than perhaps the situation is at the moment, where there is not so much clarity about how the views of carers should be taken into account.

  Q711  Mrs Browning: I am sorry to press you on this, but of course, it was under mental health legislation that the young man in the Bournewood was taken in. I am not clear in my mind which would take precedence, the mental health legislation or this particular legislation.

  Ms Winterton: I think in the particular case, initially the person was considered to be compliant, but there was no longer-term ability to challenge that, and after the situation with the carers I think there was a detention, as you say, under the Mental Health Act, but I think it was after he had come back into hospital that the Mental Health Act was used. I am not quite clear about the actual sequence of events; that is as I understand it, that the person returned to hospital, and after that, because there were various issues legally, the Mental Health Act was invoked. I do not know whether Claire might add anything to that in terms of the details of when the Mental Health Act was instituted in that case.

  Ms Johnston: I think it might be more appropriate for Adrian to help.

  Mr Sieff: What we are talking about is a person who was in hospital under informal care, but because they were incapacitated and compliant, the Mental Health Act was not used. The carers then wanted the person to be taken home, they felt it was more appropriate for that person to be at home, and it was only after this stage that the person was sectioned. If I remember correctly, the court case is about the period of time before the person was under section, when they were in informal care and whether, because they were compliant, the Mental Health Act should have been applied and therefore their rights had been abused.

  Q712  Mrs Browning: I am sorry to pursue this, but I think it is quite important because the Bournewood case is the case which I think many of us have in mind in terms of whether this particular legislation is going to prevent something like that happening again because it would empower carers to be listened to at an early stage. The carers in the Bournewood case had commissioned me to raise this in a previous debate, which I initiated in the House a few weeks ago, but in their own words, if this could perhaps put it into context, as carers, as the advocates closest to the person who was taken in under the auspices of the mental health legislation, they were rejected by the professionals in that psychiatric hospital, and ultimately, they told me, it was even suggested that they themselves needed psychiatric treatment because they tried to be robust advocates on behalf of an autistic young man who should never have been taken in there in the first place. What I am asking you is, are you absolutely certain—this was part of the Chairman's question—that what you are putting before us in this legislation is going to deal with cases like that? Are the people who really are acting in the best interests of somebody, and who very often find themselves up against so-called professionals who do not have the full picture, going to be empowered by the legislation you are putting in front of us?

  Ms Winterton: That is what I was saying. Whilst we believe that we are right in the current situation with regard to this particular case, what we do want to do in the future is to give the patient in that scenario the same access, for example, to advocacy and a nominated person and access to a tribunal if after a 28-day period they continued to be kept in those circumstances, and in those circumstances, I would expect that the carers would be the nominated persons.

  Q713  Baroness McIntosh of Hudnall: Can I press you a little on this question of precedence as between the two Bills, whether it be the existing Mental Health Act or one envisaged to be on the statute books in the future? One might imagine a situation in which somebody is sectioned under the Mental Health Act, for whatever reason. As a result of whatever it is that causes that person to be sectioned, he or she might be incapacitated, within the terms specified by the Draft Bill that we are looking at now. In those circumstances, what I would like to know is whether that person's rights under the Bill we are now examining would take precedence over the rights of those who had caused that person to be sectioned, to submit that person to treatment, or indeed to take decisions for him or her. It is a question of practical reality at the moment at which the provisions of both Bills might be in operation in one case.

  Ms Winterton: Under the Mental Health Bill and under the Mental Health Act the necessity for treatment, because the person is either a risk to themselves or to other people, would apply whether the person did or did not have capacity, so in that sense, because we are looking at compulsory treatment with detention, that would override the ability—I do not know whether you are meaning would the person who perhaps had lasting power of attorney have the right to dictate treatment. Is that the kind of thing that you are getting at?

  Q714  Baroness McIntosh of Hudnall: For example; not exclusively.

  Ms Winterton: What I would say there is that I think we do need to look in terms of things like codes of practice from the Mental Health Bill as to how one clinician would consult with somebody who had lasting power of attorney, would look of issues of advance directives. You could not say that they would override a clinician's decision in those circumstances, but I certainly think that, in terms of some of the principles of the Bill, even in cases of compulsory treatment, there should be as much effort made as possible to try to consult with the patient. So I would expect that that would happen, and that those wishes would be taken into account, but because we are talking about a high-crisis situation, the necessity does overtake the consent.

  Lord Filkin: As we would understand it, the Mental Health Act would take precedence in relation to treatment for mental disorder, and the Mental Incapacity Act would apply to all other situations.

  Q715  Baroness Knight of Collingtree: You were kind enough, Lord Filkin, to send us last week a letter giving the reasons why the Bill was being introduced, and from that we understand that you are satisfied that the Bill is necessary. However, we have already received very large numbers of letters expressing concern, although some have expressed support for the Bill, and some witnesses have, but there is a really sharp division of opinion about this, and I want to ask you whether you think the Bill is going to improve significantly on the present situation. I am particularly thinking about an article in a national newspaper only a few days ago following up a case two weeks ago of a 91-year old woman in hospital whose food and liquid was stopped and was only re-started when her grandson got a legal judgment to do so. The article to which I refer says this legislation would allow the routine neglect and dehydration to death of mentally incapacitated patients on the orders of a variety of different agents, many of whom may have nothing to do with either medicine or the patient's family. The writer goes on to describe this as sinister, and she thinks court-appointed deputies, attorneys and even people who simply claim, with no validity, to know the wishes of the patient will be empowered to authorise non-treatment, including the withdrawal of food and liquids. That was not written by somebody of no importance or with no knowledge of law; it was written by the senior lecturer in the Department of Law at the London Metropolitan University. That statement worries me, and I would like to set it beside the question I have asked you. Thinking of what is said here, do you really feel that the Bill is going to improve the present situation as you hope?

  Lord Filkin: Maybe I could make a general comment first and then use the interesting example you gave and respond to that specifically. On the generality, the reason we are confident that the Bill will make a significant improvement is that, first of all, it is addressing issues that affect a very large number of people and in many cases matter a lot to them. It does not mean to say we will automatically succeed in that aim, but it is an issue that is going to be of increasing importance to all of us in the coming years. So it potentially has a very widespread impact and relevance. Why, specifically, we are confident it will improve the situation is because it establishes very clear statutory principles as to how people are to be treated and cared for in a context where we believe, and many of the people who gave evidence to you affirm, that very many people are being treated as incapable when in fact they are not. It is far too easy to make a one-off decision for all people for all time under all circumstances, to label them incapable and then to deprive them of what we think are important rights of involvement and decision-making. We are confident that the Bill will push back that bad practice through the principles it enshrines, the first and perhaps the most important being that everybody has to start by assuming that this person is capable. Whatever label they have had put on them in the past is by the bye; you have to look at the evidence that this person is incapable at the specific point in time that there is an issue. That seems to us to be fundamental, the presumption of capacity. You have then to move on from that in practice. The second is the functional approach to capacity, which says essentially: does this person have capacity for the specific issue that we are about? In other words, is it possible for them to make that decision or, put another way, do we need to take this decision at this point in time or could we defer the decision until the person has capacity and is capable of taking that decision? So we are enshrining in statute very clear principles as to how both professionals and individuals are meant to address the care of people, and we think it goes a very long way to ensuring that their best interest, which is clearly one of the themes running throughout the Bill, will in practice be met in many more situations than is currently the case. We are confident, reassured in part by the experience in Scotland, that this will make significant progress. Turning to your specific illustration—and I read the Daily Mail article that you referred to—we think the Bill would improve the situation for that lady, because under the Bill her family would have to be consulted about her care, and that seems to us to have been what went fundamentally wrong in that situation. The family would have a right to be consulted, and the doctors would know that they would have to act in her best interests. Thirdly, if the doctors, despite that consultation, were still of the view that it was appropriate and they were charging ahead in ways that the BMA and others see as a fundamentally bad medical practice, in that extreme situation, that family would have easier access to court than they have now to challenge them, because it will be easier to go to the new Court of Protection than it is to go to the High Court. The Bill would not allow routine neglect and dehydration. It is for those reasons, in generality, that we are confident that the Bill will strengthen protection, and we are confident in the specific dreadful example you instance that that would have been significantly less likely to have happened if this legislation had been in place.

  Q716  Baroness Knight of Collingtree: Would you then say that the Bill itself, as it stands, as we are considering it here, actually will end the practice, about which there is now a very considerable body of evidence that, whatever the relatives say, the doctors will, having classed giving food and liquid as medical treatment, order that treatment to cease?

  Lord Filkin: It is very dangerous, as a politician, to say "never", as you know better than I. I think in fact it was already clear in the BMA guidance that the doctors should not have acted in the way they did under current law. When this Bill is in place, as we hope, we believe it will significantly reduce the likelihood of what you describe happening, because there would be consultation with the families. The best interests of the patient would be a clear statutory factor that had to be considered, and if the family, for example, in that situation said, "It has always been clear that she would never have wanted this sort of treatment, and our judgment about her is that she would never want this to happen," the doctors would be committing an offence if they acted in defiance of that, if they proceeded in the light of clear evidence that that was not what she wanted.

  Q717  Baroness Knight of Collingtree: That is a case where of course one would perfectly well agree that where a patient says "Please don't give me food through a tube" then that patient's wishes should be accepted. I am not speaking so much of that as the patients who have never asked to be denied food and liquid but in fact are, and their relatives are too nervous to argue, believing that the hospital always knows best, until it is almost too late. There are now many instances of that on record. I am grateful for what you have said and I hope very much it will be the case.

  Lord Filkin: Care practices take a while to implement. Nobody claims that by passing a law you suddenly change all the practice, but it will be very clear indeed in principle, which is why there is guidance to professions and from professions to their practitioners, that in the situation you describe, which is in essence one of the most difficult and painful decisions that have to be made, as to whether to sustain a medical treatment by artificial nutrition and hydration when there is no longer a medical reason for it, the doctors in that situation would be expected to consult with the relatives and ask, "Is there anything you know about her situation that would help us make this decision?" The second issue would be, in very difficult situations like this, the Bill will provide easier access to go to court, so that a doctor in that situation would be well advised to be cautious, with no immediate need to act, and to go to the Court of Protection and seek the Court's guidance on that, which of course would also allow the relatives, if they had not already been listened to, the opportunity to express their views very clearly to the Court.

  Q718  Chairman: You have mentioned guidance, and we will have some questions later on the Code of Practice, but would you expect the Code of Practice to be published in draft at the same time as the Bill was introduced in Parliament?

  Lord Filkin: It would certainly be our aim. It will partly depend on how much work we think we need to do to the codes of practice in the light of the consideration of the views of the Committee, and how early we get a legislative slot if we are successful. It would clearly be our aim because, in my experience, it makes for a better informed Committee process in both Houses if you have principles and codes, particularly when under this Bill the codes of practice will rightly have to carry quite a lot of the burden of expressing the principles.

  Q719  Huw Irranca-Davies: In your opening statement you warmly welcomed the wide consultation and the work of the Joint Committee in bringing forward quite a multiplicity of views with respect to this Bill. One of the things we have heard widely divergent views on is the issue of human rights and whether human rights are enshrined within this Bill. If I were to simply ask you "Do you feel that, as currently drafted, this is compliant with human rights legislation?" I am sure the response would be "Yes." If I turn it on its head, can I ask what would your response be to those—and in particular I can refer to witnesses we saw yesterday in this Committee—who have referred to this Bill as knocking back 20 years the rights of those who have learning disabilities and those who are particularly concerned about advocacy? How would you respond to their criticisms of this Bill?

  Lord Filkin: Let me make some general responses and then some legal responses. I have not yet read what was said, so I should be cautious in what I am saying until I have considered it in detail, although I have heard about the power of their arguments and how well they put it across. The specific reason is that at heart the Bill has an ethic running through it, the ethic being that the individual whom we are in this specific instance considering and what is in their best interests is the fundamental principle that the Bill is all about. In a sense, it is trying to put legislation and processes around saying that the only basis for taking decisions about a person who may have lost capacity is if you are doing it in their very best interests, not for the convenience of relatives or hospitals or anyone else. In essence, that is about confirming a fundamental right. More specifically and technically, obviously we have considered it, and our judgment is strongly that it is compliant. That view is shared by the Joint Committee on Human Rights, who saw no significant risk of incompatibility. The new Court of Protection, taking the example we just spoke about, provides a better route for testing particularly Article 6 rights than currently; it is easier to go to the Court of Protection than it is to go to the High Court.

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