Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 740-759)


22 OCTOBER 2003

  Q740  Baroness McIntosh of Hudnall: Could I tie this together with the advance decisions, because I think that is where the difficulty comes. If somebody has made no statement as to how they wish to be treated and they are ill and incapacitated, a different set of priorities applies in the sense that it is absolutely essential that doctors act in the best interests of their patients and that should apply in all cases. However, if a patient has made an advance directive to the effect that he or she does not wish to be treated, which apparently is provided for in this Bill, the issue about euthanasia comes up because euthanasia, as I understand it, is not about people being brought to their end without their consent. It is to do with people being brought to their end with their consent. The advance directive provision implies or could be thought to imply consenting to having one's life ended as opposed to consenting to not receiving treatment. I know there is a difference and the Bill intends there to be a difference, but it is a difference that is in some cases hard for some people to discern. I do not include myself. I think I understand that the Bill is not intending that, but there is a great deal of concern that it is.

  Lord Filkin: I am not sure that facing two problems at once helps or hinders. Let me have a go. When a person has an advance directive that, for example, if they are seriously ill it is clear that no ongoing medical treatment will be able to cure them and they do not wish to have doctors or hospital wards officiously striving to keep them alive through artificial means, in that situation it is clear. I think that is a situation that very many people in their ordinary lives do feel. The reverse also would apply, would it not, if a person had made a reverse advance direction and they did not wish always to have continuation of artificial nutrition? That was their judgment on whatever grounds, ethical or religious; that was what they wished. In that situation it would be clear. Staying with the artificial nutrition and hydration, because that is probably where the debate is, the middle ground, the most difficult ground, is where there has been no advance directive either way and it is as clear as the doctors think that there is no possibility of cure and yet artificial nutrition and hydration is sustaining the person alive. There are two responses to that. First of all, the House of Lords has made a judgment which we respect. It has made a judgment that in the Bland case it was proper to end the artificial nutrition and hydration because that was seen as medical treatment. That was their judgment. I am not in a position to argue with it. We would say that, in situations like that, if there was doubt or dispute then the doctors should take that issue to the Court of Protection for a decision, particularly if there was any whiff of dispute between what the doctors thought and what the relatives thought. That is exactly, of course, what the Court of Protection is there for, a more accessible form of dealing with the most difficult issues. Of course, a decision has to be made one way or other, either that one continues the artificial nutrition and hydration for what might be 20 years or that someone makes a decision not to. The House of Lords decided that the decision in those circumstances to end it is not euthanasia but is the ending of medical treatment and we respect that position, but when in doubt the Court of Protection has to arrive at a decision in that situation.

  Q741  Baroness Knight of Collingtree: But is it not very important to get on record that the Law Lords who made that decision made it also very clear that it should not be used as a rule by which things of that kind happened in future and that one of the Law Lords said, "This now leaves the law in an impossible position"? It should not surely be used as a yardstick now that that is what happens in cases like Bland automatically?

  Lord Filkin: It certainly only applies as a judgment around PVS cases. If another case comes up in a similar context then House of Lords judgments carry precedent and need to, for good reason; otherwise we would always have to go to the highest appellate court in the land.

  Q742  Lord Rix: Would you not think that the very phrase that is being used at the moment, "advance refusal of treatment", gives people the feeling that this might be a long-distance form of euthanasia? To refuse treatment is rather a negative way of putting it. I am certain you could write "advance statement on treatment" or "decisions on treatment for the future", and I believe you could write the advance statement or decisions in such a way that any implications of euthanasia would be totally excluded from the wording and the possibility of construing that thought. Can you tell me why advance decisions to refuse treatment actually found their way into the draft Bill anyway, because I gather that the Lord Chancellor's earlier policy statement "Making Decisions" felt that such provisions were unnecessary?

  Lord Filkin: At one level and one particularly these things are covered by the common law. What we have sought to do in the Bill is try to give as much appropriate certainty as we can. I think the argumentation about that would be in essence that here today, if I am assumed to have capacity, I can make the decision that I do not wish to have medical treatment. That has been a fundamental principle that effectively stated that not anyone else can force medical treatment on me if I do not want it. If that is right, and I think it is right, then the reason for putting something in the Bill about it would be, why would somebody who had lost capacity or knew that they were going to lose capacity not have the ability to express their wishes if they felt strongly about it? No-one says they have to express those wishes but the Bill gives them the power to do so if it is something about which they feel strongly.

  Ms Winterton: Maybe I ought to come in here a little bit as obviously the question you ask is about why the decision was made to put it in. The difficulty was that if you left it out there would be a bit of confusion as to how that might relate to lasting powers of attorney and general authorities in the Court of Protection, so we felt at the time that this would be a helpful clarifying measure to include.

  Q743  Lord Rix: Would you not agree that the wording "advance refusal of treatment" is perhaps a little pejorative and might make people retreat from the idea? I would rather place on record how I would like to be cared for in my last days rather than how I would like my life to be terminated in my last days.

  Ms Johnston: There might be an issue about legislative provisions, which is what these clauses are trying to do, make clear what the legal effect is of a particular sort of decision. That may be one clause in a much longer document, much of which would not qualify as an advance decision, but what it was thought important to resolve was that if something that is a qualifying advance refusal has been made people need to know what effect that has on the other decision-making structures within the Bill. I do not think there is any suggestion that you could not make something still called a living will or an advance statement. What the clauses are trying to do is say that if bits of those things include advance refusals of treatment, then here is the legal consequence of that.

  Lord Filkin: There is also perhaps a distinction, I have been reminded, between advance refusal, where we have a right to refuse treatment, and demanding certain treatment. We do not have the right to demand treatment. We can request it but it is not categoric that doctors or hospitals are forced to follow literally a request for treatment A as opposed to treatment B. In a sense there is a difference in the power of doing it in those two situations.

  Q744  Lord Rix: In the codes of practice would there be a pro forma giving appropriate wording for an advance refusal and an advance decision? Would there be instructions that witnesses could not be members of the immediate family, could not be likely beneficiaries of the will, etc? All this, of course, would assure those who thought this clause in the Bill could possibly lead to euthanasia.

The Committee suspended for a division.

  Lord Filkin: In a sense we agree that it is important that they should be kept under review and up to date, and the code would deal with this, as the current BMA code of practice does. Also, in a wider context it would be very important to have advice in codes of practice about the making of advance directives which makes the person fully aware before they do so of the importance of it, the weight of it, the context of it, so that they can think very carefully about the range of issues. The test also with this would have to be about validity and applicability. I also think, if I recollect, but I may be in error on this, that it is not utterly absolute. There has to be an ability to take into account the context of the situation at the time by right and, if there is evidence, for example, that the person who made the advance directive in terms of their previous values or statements might have taken a different view if they had known the circumstances might change, that has to be weighed in the balance at the same time. That seems to me, although difficult, right.

  Q745  Lord Rix: Would you exclude as witnesses likely beneficiaries of the will or relatives, which is normal practice anyway if you are making an ordinary will? Would it not be the practice for these advance statements?

  Lord Filkin: It is normal practice, I think, is it not, and therefore we would need good reason not to, is the short answer.

  Ms Johnston: I think a lot of these issues will be expanded on in the code of practice.

  Q746  Chairman: Just before we leave advance decisions, we had some evidence from a number of people surprised at the terms of 23(2), which says that a decision can be expressed in broad terms or non-scientific language. The other thing that has been put is that they should be always in writing and perhaps witnessed, that they should be advisory rather than binding, and that all GPs should be required to record them in patient notes.

  Lord Filkin: I understand why people made those representations, because of the potential importance of these decisions and a desirability for certainty. Against that though, which is why we certainly were minded initially (and it may still be our position) to keep it informal, was to allow what may be necessary flexibility. Frequently it is the case that people make these decisions quite late in the process, for example, before going into an operating theatre. We also do not want to discourage people from keeping them up to date by making it too formal or too bureaucratic. Having said all of that, we have got to look at this in the round to see if it is possible to strike a balance in any way better than we have done currently between obtaining the benefits of that informality without opening up the risk of abuse. It may be that it is impossible to do so, that you cannot actually meet both tests at once.

  Ms Winterton: On the point of GPs, I think the difficulty might well be what would happen in an emergency situation, what if the person had changed their view but the GP had not been notified. There are some practical issues to think through.

  Q747  Baroness McIntosh of Hudnall: You have laid considerable emphasis as this session has gone on on the importance of the Court of Protection and its primary value being resolving some of the difficulties that might arise as this Bill is implemented. How accessible, both geographically and physically, do you believe the Court should be and would it be able to act fast enough in the kinds of circumstances that you have described already in reply to earlier questions?

  Lord Filkin: The first thing to say is that the Court of Protection is an important long stop, that it should not be seen as the court of first call. As much as possible we would want people to resolve disputes at the point of the dispute by using dispute resolution mechanisms in the context, whether it is a hospital or the GP or any care situation, for obvious reasons. You are more likely to get a better resolution by doing that. With regard to the specifics, the court will have a regional presence. We think it should retain the informality it currently has got. I went to sit recently in on the Court of Protection and it is quite appropriately informal, by which I mean it is sitting round a table, and that is good for obvious reasons. It will have emergency application, as the High Court has, for dealing with emergency applications, so yes, it would be able to deal very fast through emergency application procedures when it is necessary, as it must do.

  Q748  Baroness Fookes: You indicate that legal aid will only be available in the new court for more serious and complex cases. How then will such cases be defined?

  Lord Filkin: There are many cases when legal aid will not be needed because in many cases it will be an argument about the facts rather than about law, and many of the cases that go the Court of Protection will and should be dealt with in writing rather than requiring attendance. Also, we are cautious about seeing that involving lawyers—and I do not wish to be rude to lawyers—necessarily is the solution to some of these issues. If the person is perfectly capable of making representations themselves to the Court of Protection, as they currently do as individuals, given the context of informality, it is desirable, consistent with the principles of the Bill, that people continue to do so and one does not take that away. Also, using lawyers often can escalate issues by making them very adversarial in some contexts. Having said all of that, when it is necessary to have a lawyer put your case, because the issues are complex and they are legally complex, then the Legal Services Commission has the duty to provide people in those circumstances with appropriate legal support. Finally, the thing to say would be that the Official Solicitor himself, who is independent and an expert adviser, has also to act to represent people when he thinks it is appropriate to do so.

  Q749  Baroness Fookes: The Law Society told us that they were really worried about barriers to representations, for example, the constriction of legal aid. Do you think they were overstating the case?

  Lord Filkin: I think it is important not just to see funding more lawyers as necessarily the central need. In many situations it is important to provide people with information and advice about their situation and the options earlier on in the process rather than just seeing more legal aid obtained for formal dispute conflicts in the court. There is always a case made by the Law Society that it would be good to have more legal aid, and I would not want to comment on that, but I do not think that one should just see this as a debate about legal aid. It is as much a debate about getting information and advice to people at a point where they might need it.

  Q750  Baroness Barker: One of the issues that has not received that much attention during our deliberations and one that I feel very strongly about is financial abuse, of which there is a great deal. I preface my question by saying to the Minister of State that one thing that should be in the Bill is that people should think about receiving training even though the finance and banking industries were not there. I wonder if she might respond at a later date about that. I want to talk about the court-appointed deputies and how they are supervised and how their powers are reviewed. Under the existing system there is already a fair degree of disquiet, particularly about staff of local authorities, usually directors of social services, being appointed as receivers and, as increasingly they will be involved in the decision making not just about what care a person should receive but also the costs and charges of that care, there is potential for there to be a very big conflict of interest. I wonder if we could talk about that and also about expanding the role of the Lord Chancellor's Visitors.

  Lord Filkin: On the first point about the avoidance of conflict, the Public Guardianship Office currently is doing quite a bit of work trying to work with banks and building societies to raise awareness of EPAs and to raise the awareness of the risks of financial abuse. I think that is very important. We need to sustain that, obviously, in respect of this Bill, because at times it is clear that they do not always understand the need for vigilance and caution in that respect. Secondly, financial directors will in a sense operate in the same way as at present receivers by the need to lodge accounts with the Public Guardianship Office which clearly has a duty to enquire into anything that causes them or should cause them concern, and also that visits by the Lord Chancellor's Visitors are an important further safeguard, to visit the situation themselves to see if they can identify any evidence of actual abuse if that was there. We currently have a retinue of Lord Chancellor's Visitors. We will need to keep under review whether more are needed in future if this work expands as a consequence of the Bill.

  Q751  Baroness Barker: One of the consequences of the Bill will be that powers of attorney will cover both financial and welfare decisions. There is a great deal of concern that within the system, both informally and formally,—and I contrast your last answer with the one before about not involving that many lawyers—there is a great deal of risk that people whose ability is limited are going to be subject to decisions about their care and their finances and that all of those decisions are going to be made by the same people in many cases without adequate scrutiny. That is the real point I want to draw out.

  Lord Filkin: I accept the importance of the point. Clearly, we think of the ability to have health and welfare deputies as benefits but that also, as you imply, puts in the need to have effective supervision arrangements openly, and the short answer is that I think that is an area we are still in discussion on, on how best to give effect to that, in practice, the balance between what should be done by the PGO, what should be done by a care professional, inspection arrangements and so on at a more local level. Work is in progress on that but we accept the importance of a clear answer to that.

  Ms Winterton: It goes back slightly to what I was saying earlier about the extent to which a complaint might be made, whether it is about the provision of care or whether it is something rather more which might be an abusive situation.

  Q752  Baroness Wilkins: We have had disturbing evidence that some form of financial abuse takes place in about 20 per cent of cases. Do you think the Bill should be more trying to prevent that abuse?

  Lord Filkin: I am not sure whether it is the Bill or whether it is we who have responsibility for trying to invigilate it more, because in essence there are already responsibilities on the Public Guardianship Office in terms of trying to identify and prevent financial abuse. It goes to the heart of their role because their role is about trying to provide effective protection. You will know as well as I do that that is not simple, by which I mean that the potential for abuse in this area is real and ever-present and one must assume, perhaps against one's wishes, that there is risk almost in any situation. For a PGO that is developing a specialist unit to investigate allegations of financial abuse and I had a vigorous session with their management board a few weeks or so ago about this where I was really playing devil's advocate in challenging them as to whether their arrangements for identification of financial abuse were strong enough. What we decided at the end of that was that we should basically involve for the Treasury an external auditor to look at their systems and processes to see whether they were as strong as they could be or should be. In a sense that issue applies now. It will apply just as much in the future but it is essentially an operational issue about trying to ensure that you have people who are very vigilant, highly suspicious, highly skilled at looking for patterns of abuse because, given human nature, there will be people who will attempt to do so, for obvious reasons. If somebody has got a lot of money it is tempting sometimes to help yourself to it.

  Q753  Chairman: Is not the problem in fact that we do not actually know how many enduring powers of attorney there are? It is an unknown figure so therefore by definition any fraud or abuse is unknown. This is a problem that we hope that the LPAs will put right.

  Lord Filkin: You are absolutely right. In a sense the situation of the Bill will be better than it is now because LPAs will have to be registered before they can be used, whereas with current EPAs it is difficult to monitor because they can be operated without registration.

  Q754  Chairman: One view was put that the Bill should require all enduring powers of attorney to be made in the lasting power of attorney, but we are told that that is a practical impossibility.

  Lord Filkin: I think that is probably true.

  Ms Winterton: From the health care side it may be that people might want different attorneys for different decisions. Somebody that you trust with your finances may not be the same as somebody that you wanted to make decisions about your health and welfare.

  Q755  Laura Moffat: The Bill is very clear about ensuring that people who are found to be abusing vulnerable people who lack capacity will receive punishment for that. Do you think that there may be value in adding to this Bill an inspection process so that the local authority or any other body may be able to inspect and threaten to inspect and therefore prevent or deter abuse rather than trying to stop it when it has occurred? Is there any value in that being put into the Bill?

  Ms Winterton: We would have certain difficulties in that, although we are looking at the way that there could be a protection of vulnerable adults list and that would as well put a kind of workforce ban on people who had shown any sort of abuse before. There will be the systems that I have outlined before in terms of care homes, for example, inspection, the new CHAI taking over inspection, and the committees that I talked about in terms of the multi-agency approach that local authorities will be expected to undertake under the "No Secrets" statutory guidance. I know there have been some calls to have a similar system as for child protection but I think the overall message we are getting, including from many of the stakeholder organisations, is that that might be overly intrusive and that carers and families might feel that that was inappropriate in those circumstances. What we want to try to do is to concentrate more on the safeguards for people as opposed to having the more interventionist and perhaps intrusive systems that have been mentioned in terms of making it very similar to child protection committees.

  Laura Moffat: So "no" is the answer.

  Q756  Baroness Barker: Your paper suggests that the new non-statutory Adult Protection Committees to be set up by councils with social services responsibilities will take the lead in protecting vulnerable adults from abuse, but the Association of Directors of Social Services told us that many local authorities have yet to see these committees and might not give priority to this unless placed under a statutory duty to do so. Would you consider making it a statutory duty to do so, and have you reflected on the impact on local authorities from the point of view of their budgets, bearing in mind that they do have to provide for their statutory obligations in advance of anything else, given the pressures they are under at the moment?

  Ms Winterton: We understand that something like 90 per cent of local authorities have Adult Protection Committees either up and running or planned, and we obviously see that as a very good way of taking forward the statutory "No Secrets" guidance which, as I say, did require local authorities to look at how complaints could be made in this area. Having said that, we will continue to monitor the effectiveness of the committees and if we feel that there does need to be a strengthening of it we would obviously look at that very seriously.

  Q757  Baroness Barker: Can you explain, Minister of State, how Adult Protection Committees would differ from Area Child Protection Committees that have just been abolished with the introduction of children's trusts? What is the distinction?

  Ms Winterton: This is for vulnerable adults.

  Q758  Baroness Barker: I understand the client groups are different. What is the distinction in the model? Are we taking a model that has not worked that successfully for children and applying it to vulnerable adults or are we applying something different?

  Ms Winterton: I must say I could not tell you the exact difference in terms of the constitution. I am quite happy to write about the difference between the two if that would help. Again, just to emphasise, we certainly feel that this is something that we will keep monitoring to make sure that they do have the powers necessary and that they are being set up in the areas as we have requested.

  Q759  Laura Moffat: Naturally there is concern around the issue of medical research for those who are not able to give their own consent. The Medical and Psychological Society has given evidence to us and has raised concerns about that because it is very important that research goes on for things like Alzheimer's Disease to ensure that we are able to continue to be able to make medical strides in those areas. What protections are there not only for the people who may well be involved in medical research but also those who undertake that research?

  Ms Winterton: The Bill itself allows medical research to be undertaken on somebody without capacity if it is felt to be in that person's best interests. Obviously, it would be very controversial to include research that was not in the person's best interests. However, if there is a feeling that on the one hand the provisions at the moment might be overly constraining as they stand, and if there are felt to be further safeguards that need to be built in on either side, then we will be happy to hear those representations and ideas and give them very serious consideration.

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