Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

44.Supplementary memorandum from the Lord Filkin (MIB 1221)

  Thank you for your letter of 23 October following the oral evidence that Rosie Winterton and I gave to the Joint Committee on 22 October. I am now writing to provide you with additional written information that we were not able to cover fully at the oral evidence session due to pressure of time.

  First, I attach answers to the questions about Best Interests, the General Authority and Resources that we did not reach. On Resources you are aware that when the draft Bill was published it was accompanied by a partial Regulatory Impact Assessment. This is in accordance with Cabinet Office guidelines issued by the Regulatory Impact Unit. The RIA is in a partial form only because it reflects the consultative nature of the scrutiny process. A full RIA is required for introduction of the Bill when the legislative proposal is firm and it is at this stage that Treasury expect us to have full costings and a commitment to absorb the costs. My Department, together with the Department of Health, are working to further develop the costings and we will be able to produce the full RIA when we have received, and taken into account, the recommendations of the Joint Committee.

  Second I attach more information in relation to Baroness Knight's request for reassurance on how the Bill will affect those who are in a similar situation to the recent case of Olive Nockels as highlighted in the Daily Mail on 10 October.

  Third, I attach additional responses to Baroness Fookes'questions about the possibility of including a free-standing statement of principles in the Bill and to Baroness Barkers' questions about civil partnership legislation.

  Rosie Winterton will write to you shortly providing additional information on the difference in constitution between Adult Protection Committees and Area Child Protection Committees and on the Bournewood Gap.

  Officials are checking the transcript of the evidence session and will be in contact with you about any comments we would like to make. Officials will also be writing shortly to answer your more technical enquires on jurisdictional issues, data protection and confidentiality.

  If, in drafting your report, you have any further queries please do not hesitate to contact me. I look forward to seeing the conclusions of the Joint Committee.

  I am copying this letter to Rosie Winterton.

October 2003

Annex 1

Remaining Questions as requested by the Joint Committee


The Joint Committee requested the Minister's response to Question 6

  Q.  Is the Bill's definition adequate and readily understandable?

  A.  From both the oral and written submissions that have been given to the Committee, I think it is clear that it is very difficult, certainly in statute, to state by reference to any abstract criteria, what is in someone's best interests. What is in one person's best interests may be very different from another person.

  This is why the current definition at clause 4(2) (b) stresses the need to involve the individual in the decision as much as possible. I think that the individual him or herself is often the best judge of what is in their best interests. This should be the starting point for any definition.

  We have proposed a checklist approach in the Bill setting out the key factors to consider in determining best interests. The Code of Practice would provide more detail on how to approach best interests. It may be, however, that we need to add to or amend the checklist on the face of the Bill and we are happy to consider proposals on this.

  Q.  What do you say to those who want the word "personal" added, or the concept of "benefit" introduced?

  A.  I think that this is probably a question of semantics and am unsure how adding "personal" would improve matters. I can see that some stakeholders have concerns that the best interests of the individual may be overriden, for example, by the interests of family members.

  Our intention is precisely to give primacy to the personal interests of the individual. I think that must be right. This is, perhaps, something that could be made more explicit in a statement of principles at the head of the legislation. I should also point out that the Bill does say, in clause 4, that a decision must be in a person's best interests. This is intended to be just as strong a statement as "personal best interests".

  R.  Should the Bill provide scope for weighing conflicting interests or prioritising the different factors involved as a means of resolving conflicting concerns, such as the possible conflict between a person's expressed wishes and what others may perceive to be their "best interests"?

  A.  We want to promote a partnership, consensus approach to decision-making on behalf of adults who lack capacity. I believe that creating a rank order of factors could work against this. I think it is also the case that different factors will necessarily have different weight in different decisions. The important thing is that we resolve conflicts and disputes as to which factors take priority by having everyone focused around the best interests of the person concerned. The Code of Practice will provide more detail on how this is to be achieved.

  Q.  And should the Bill specify more clearly what needs to be done to help overcome communication difficulties or provide better information?

  A.   Clause 2 (3) requires that "all practicable steps" be taken to help a person make a decision and this would of course include communication. This is a key principle of the Bill which will be backed up by the Code of Practice. I would expect to see this particular part of the Code of Practice subject to quite regular review so we can reflect changes in communication techniques.

  As regards specifying communication techniques more clearly, I think that there would be too many different situations where this situation would apply to effectively specify in any detail in the Bill. However, if the Committee considers this important we would be happy to look again at strengthening this key principle in this Bill.


The Joint Committee also requested the Minister's answers to Question 7

  Q.  Is the concept likely to be clearly enough understood by those who are likely to have to apply it?

  That is a difficult question and I know that some of those who have given evidence to the Committee have not understood the purpose of the clause.

  The purpose of the clause is to provide clarity on the informal powers available in helping those who may lack capacity. It is bounded by the principles in the Bill—that the other person must first be assumed to have capacity for the decision and that decisions must be taken in the best interests of the person. It must always be remembered that the person providing care can only do things that it is reasonable for them to do given their relationship to the incapacitated person. For example, it would be reasonable for a dentist to provide a person with dental treatment but not an informal carer.

  I want to emphasise that the general authority does not give anyone "carte blanche" to take decisions for anyone else. Instead, it aims to replicate the current common law position.

  Q.  Should a clearer distinction be made between "day-to-day" decisions and those likely to have what one of our witnesses has described as being likely to have "substantial impact"?

  The principles underpinning the Bill such as the best interests criteria and the general authority apply to all decision making. The Code of Practice and guidance will set out different types of decisions that may need to be made on behalf of people lacking capacity and how these should be approached.

  In clause 26 we do set out some very black and white things that are not permitted under this Bill such as consent to marriage and divorce.

  However, more generally it would be very difficult to make a distinction between types of decisions on the face of the Bill—after all "day to day" decisions can have a very "substantial impact"—where do you draw the line? A decision about going to a day centre on one particular day or another might not seem significant to the day centre manager but could have a substantial impact on the individual concerned.

  Q.  Should more restrictions or safeguards be included in the Bill?

  A  The challenge in legislating in this area is to strike the right balance between safeguarding protection and not over-burdening decision-making with bureaucracy.

  We have sought to strike that balance by providing for a general authority that has its place in a comprehensive legal scheme. Further details will be set out in a code of practice. Given the vast range of different situations and different steps that will be covered by this Bill, it is difficult to provide for appropriate procedures and safeguards in every case. What is appropriate for a professional healthcare situation may not be appropriate for action in a private home. What we have attempted to do is to lay down principles and parameters in the Bill that allow flexibility and the code will then go on to describe the kind of processes and safeguards that should be used in different types of situations.

  The draft Bill sets out a process that, in itself, provides safeguards for the incapacitated person and ensures that decisions are taken in a clear and transparent way.

  First, a carer must have a reasonable belief that the person lacks capacity. This is an objective belief. It would not be enough for a carer to say "You look incapable, I'm making this decision for you". The starting point is always that the person has capacity. Carers will have to show that they have reasonable grounds for believing the person lacks capacity in relation to the particular issue, which means they must have taken all practicable steps to help the person make the decision for themselves.

  Second the action must be reasonable for the particular person to take. "Reasonable" is necessarily very wide because it has to cover all steps that could ever be required to be taken for someone else. But "for the particular person" is an important qualification—what is reasonable for a son or daughter is not the same as what is reasonable for a doctor or nurse. The Code would provide more information on what is reasonable. This will obviously be very important.

  Finally the action taken by the carer must be in the best interests of the person lacking capacity. Here the carer must follow the best interests checklist—including considering the wishes and feelings of the person, consult with others if appropriate and take the least restrictive decision possible.

  Q.  One witness has suggested that for some decisions a second opinion should be required, as in the Mental Health Act, 1983. Do you agree?

  The Code of practice will give detailed guidance on the circumstances where a doctor or other health professional should obtain a second opinion. However, I don't think that an actual requirement for this to happen in certain circumstances would be either achievable or desirable on the face of the Bill itself.

  To give you an indication of the circumstances where the Code of Practice may advise that a second opinion would be helpful, the British Medical Association has already produced guidance in this area and we envisage that the Code of Practice will follow this closely.

  Circumstances where a second opinion would be beneficial are likely to include:

    —  where consent is needed for a particularly serious or complex medical procedure or where the consequences of that procedure would be potentially serious for the patient;

    —  Where it would be helpful to get the opinion of a colleague from a particular medical discipline for example an occupational therapist or psychiatrist;

    Where there is doubt about a patient's capacity.


The Committee requested additional information on the system of benefit appointeeships and how they relate to the draft Bill.

  Q.  How does this part of the general authority (expenditure incurred as part of the general authority) relate to the benefit appointeeship scheme?

  Benefits appointees will continue to be appointed under social security legislation rather than under the draft Bill. However, my officials will continue working with colleagues in DWP to ensure that all elements of the draft Bill sit comfortably with the procedures that they already have in place for dealing with benefits.

  The appointeeship scheme carries with it a separate set of safeguards outside of the Bill to ensure that potentially vulnerable claimants are protected. In particular, the scheme provides for an appointment to be revoked at any time and for any reason. In practice, DWP will revoke it where there is evidence that the appointee is abusing their position. This will generally concern the mishandling or misspending of the benefit money itself.

  Where the evidence is clear the DWP is quick to act, but it must be remembered that if an appointee is revoked then someone else has to fill the void or the claimant is left helpless. It is a situation that has to be handled very sensitively.

  We are seeking to suggest to DWP that they include an obligation for appointees to spend the benefit money in the person's best interests. This would increase protection for vulnerable claimants and create a direct link between a key principle of the draft Mental Incapacity Bill and the benefit appointeeship system.

  Q.  What about the very specific concerns about the inadequate appeal provisions for individuals who are subject to benefit appointeeships? Presently an individual who wishes to challenge the appointment can merely request that the Secretary of State exercise their discretion to revoke the order. Surely this infringes an individual's human rights under Article 6(1). An alternative remedy would be to enable the individual under this Act to have a right of access to an Appeals Tribunal.

  It is my understanding that the current arrangements do not breach Article 6 and that there is no need for individuals to have a right of access to an Appeals Tribunal. It should be remembered that appointees not "forced" on claimants. DWP is generally approached and takes precautions before making appointments.

  It is also important to bear in mind that without the appointee, the claimant would not be able to access the social security system. Where DWP discovers abuse, the Secretary of State is quick to remove the appointee.


The Joint Committee requested the Minister's response to their question 18

  Q.  Given the amount of time and extensive consultation that took place before the draft Bill was introduced, why has it not been possible to provide more detailed estimates of the likely costs of implementing the Bill?

  Firstly, the scope of the Bill is extremely wide. The Bill has the potential to affect millions of people in many different sets of circumstances including private care situations, PCTs, NHS Trusts, social services and court-based forums. DCA is therefore working closely with the Department of Health in order to develop estimates of the likely costs of implementing the Bill for health and social care.

  This has already involved holding workshops involving health and social care professionals throughout the country in order to work through case studies of how the decision-making process would change and to assess any additional demand/cost and benefits.

  Secondly, there is an ongoing need to understand the gap between current behaviour and best practice across the full scope of the Bill. This has been challenging as there is no baseline from which we can measure.Thirdly, there is no doubt that the processes of pre-legislative scrutiny and consultation will impact on costs so work is continuing on finalising costings after the Committee reports.

How soon does the Department expect to have a realistic estimate?

  Work on estimates will continue after the pre-legislative process and we will take into account the Committee's recommendations. Full costings will given to the Treasury prior to introduction of the Bill, as part of a full Regulatory Impact Assessment.

  Given the scale of the Bill, implementation could not occur prior to the year 06/07 at the earliest. We therefore anticipate that funds will not be required until well within the next spending cycle.

On which Department's budget will the main impact fall?

  The costs will fall primarily between DCA and Department of Health.

Costs for DCA will be for the Court of Protection, the Office of the Public Guardian, legal aid and producing public information and guidance.

  Costs for Department of Health will be for training and awareness raising among health and social care professionals and ensuring that these professionals meet the standards of the Bill.

  There may be some very minimal costs for other Government departments such as ODPM and DWP.

  As I have said, we do not envisage that implementation could occur prior to the year 06/07 at the earliest. Decisions on spending for this period will be made during the next spending review which will report in Summer 2004. How the costs fall across each of the Departments and how these will be funded will be made as part of this process.

  Q.  Are adequate trained personnel likely to be readily available to make it all work properly? Will there be a need for a massive public information campaign?

  Training and awareness raising particularly amongst health and social care will be important because of the numbers involved, but there will also be an impact on the judiciary, the new Office of the Public Guardian and the Court as well as in Local Authorities and the voluntary sector. We have estimated that around 100,000 such professionals will need training.

  In terms of guidance, the Codes of Practice setting out requirements under the MI Bill will apply to health and social care professionals and carers in the public sector, and to those in the private and voluntary sector who are providing services on behalf of the NHS/SS.

  We will also need to make consequential changes to existing DH Guidance, codes of practice, forms, leaflets and procedures that are available to health and social care professionals and carers in the public sector.

  Making arrangements for training and awareness raising in all these sectors will be part of planning for implementation. In particular, we will need to establish the best way to provide this training for example whether it could be joined with Continuing Professional Development.

  Q.*  Will there be a need for a massive public information campaign?

  Yes, there will certainly be a need for a public information campaign. We will produce codes of practice, public information leaflets, website information etc. We would hope to do this gradually over a period of time as we prepare for full implementation and will work closely with interest groups to reach out to their members on the ground.

  We are already working to raise awareness through the PGO and the guidance leaflets that have already been produced by DCA.

  Q.  Will the Bill's requirements incur significant opportunity costs on other health and welfare programmes?

  People with mental incapacity form part of all health and welfare programmes and they will continue to do so following implementation.

  The Bill should not require any new systems or procedures in health and welfare programmes. Instead, it should mean that a more consistent approach is taken under existing mechanisms.

  We will make sure that all programmes make adequate provision for individuals with mental incapacity which may mean tweaking systems and altering guidance but this will not involve fundamental change.

Annex 2

Baroness Knight's concerns regarding the case of Olive Nockels and its relevance to the Draft Mental Incapacity Bill

  The draft Mental Incapacity Bill would help in a case similar to that of Mrs Nockels in the following ways:

    —  Statutory guidance on best interests would mean that everyone was focused on the person themselves;

    —  Decision-making would be transparent and clear to all parties;

    —  There would be a requirement for all relevant people to be consulted when deciding a person's best interests;

    —  Disagreements would be able to dealt with by specialist healthcare disagreement procedures, involving all relevant people;

    —  There would be faster, easier access to a specialist Court of Protection so cases such as these could be resolved quickly and with the involvement of all parties.


  During the Committee session, Baroness Knight raised the very sad case of Olive Nockels who was the subject of recent court proceedings. It was agreed that a fuller answer to Baroness Knight's concerns would be provided after there had been an opportunity to look in more detail at the facts of the case and how they specifically relate to the draft Mental Incapacity Bill.

  We are sure that Baroness Knight, and possibly other Committee members, will be familiar with the facts of this very sad case but they are set out here briefly. Ninety-one year old Mrs Nockels had been in hospital for three and a half weeks following a stroke. Mrs Nockels, who was also suffering from dementia, was unable to speak or swallow and doctors advised that there was no chance of recovery. The healthcare team therefore took the decision to withdraw medial treatment, which included artificial food and fluids and antibiotics, from Mrs Nockels. This decision was taken after consultation with members of Mrs Nockels' family. Two of her daughters fully agreed with this course of action, however Mrs Nockels' other daughter and grandson strongly disagreed.

  It is important to emphasise the factors that the health team would have taken into account in withdrawing Mrs Nockels' medical treatment. Under current common law, medical treatment is lawful if it is in the best interests of the patient. Therefore, if the treatment is not in the best interests of the patient, it will not be lawful to initiate or continue that treatment. In the case of Mrs Nockels, doctors clearly considered that the burdens imposed by providing medical treatment outweighed the benefits of that treatment to the patient and it was therefore in Mrs Nockels' best interests not to continue to receive that treatment. Medical treatment could therefore legally be withdrawn even if this resulted in Mrs Nockels' death.

  The draft Bill would not change the current law as it applied in this situation. The doctors responsible for a patient's care would still have responsibility for deciding whether a particular course of treatment was in a patient's best interests. However, the Bill would clarify the legal position and would strengthen current good clinical practice by enshrining certain elements in statute.

  In this case, doctors involved Mrs Nockels' family in every decision relating to her care, including the decision to withdraw treatment. The draft Bill would, as part of statutory guidance on determining best interests, make this a requirement. In addition, doctors would have to consider a `checklist' of factors when deciding whether a certain course of action would be in the best interests of a patient. It may be that the outcome of those deliberations would still be the same, i.e. that treatment should be withdrawn but the process of arriving at the decision would be transparent and clear to all concerned.

  To return to the facts of the case, following the withdrawal of treatment, Mrs Nockels' daughter and grandson applied to the High Court for an injunction requiring the hospital to immediately reinstate medical treatment pending a full hearing of the case. This was granted and treatment was restarted but unfortunately Mrs Nockels died before the full hearing could take place.

  This was a difficult case because the family members disagreed about what would be in the best interests of Mrs Nockels. Unfortunately it is inevitable that even in cases of good clinical practice, such disputes will occur. As part of looking at how the draft Bill would be implemented, we are looking at how current healthcare disagreement mechanisms can be utilised in order to resolve disputes without the need to go to court. For example, there are already a number of patient advocacy and complaints procedures within the NHS that could be used to resolve disputes of this kind before court proceedings are commenced.

  However, we accept that there will be some cases that are either so serious and concern such sensitive issues or that cannot be resolved in any other way that the court is the most appropriate arena for them to be dealt with. The case of Mrs Nockels may well fall into this category and, although tragic, her case demonstrates the effectiveness of our court system in responding quickly and appropriately in such serious circumstances.

  The draft Bill will enable people to have even easier access to the court by establishing a new Court of Protection with a regional presence which will take over the current jurisdiction of the High Court in these serious healthcare cases. The new Court will be a dedicated forum for cases relating to how decisions are made on behalf of those lacking capacity and, as such, will have the expertise to deal with complex cases such as this. As now, cases will be able to be brought as a matter of urgency where this is needed.

Annex 3

Questions on Statements of Principles and Civil Partnerships


  Baroness Fookes: Some witnesses thought it would have been better if the statement that capacity is to be assumed unless proved otherwise should be at the very forefront of the Bill, Clause 1.

  Chairman: Certainly, from the evidence we have heard, the perception of the Bill might be improved if the statement of principle were actually in the Bill rather than being hidden away in the various clauses. A number of witnesses would feel more comfortable and therefore the perception would be improved.

  The Mental Incapacity Bill as currently drafted does include several key principles. These are:

    —  the assumption of capacity;

    —  the requirement that capacity is to be assessed according to each individual decision to be taken;

    —  the requirement to take all practicable steps to help the person make his or her own decision before a finding of capacity can be made;

    —  the obligation for all decisions taken on behalf of someone who lacks capacity to be made in the person's best interests.

  We agree that the perception of the Mental Incapacity Bill is important and we have heard that the Scottish style of a clear statement of principles in the Bill has been well received. Therefore, we are content to investigate whether it would be possible to amend the draft Mental Incapacity Bill to similar effect and give more emphasis to the principles given above. Of course, we will need to take advice from Parliamentary Counsel as to the possibility of achieving this.


  Baroness Barker: Would it be agreed that there would be a read-across from any civil partnership legislation, if it were to be passed, to this Bill . . . in terms of decision making and consultation?

  The MI Bill requires consultation in decision making (on behalf of those who lack capacity) with persons who have been named as someone to be consulted on the matter in question, engaged in caring for him or interested in his welfare and/or are a lasting power of attorney. These requirements form part of the `best interests' principle—see clause 4.

  The purpose of this is to try and consult as many relevant persons as necessary before making a decision on behalf of another person—including persons who are in a same sex relationship. For this reason, the Bill is left open and does not list specific persons to be consulted and so the introduction of a Civil Partnership scheme would have little impact here. A Code of Practice will give more detail and practical guidance of who should be consulted and in what circumstances.

  If a person is planning ahead for a time when they may lose capacity then they can either name persons to be consulted, or go further and make an LPA. There is complete choice in who to nominate as an LPA and no expectation that this will be a partner. The introduction of the Civil Partnership scheme will not affect this.

  There are however, specific minor and technical situations where the Civil Partnership framework will effect the MIB if it were to be passed.

  Firstly, clause 11 of the MIB provides that where a LPA confers authority to make decisions about property and affairs—the donee may make gifts on customary occasions—which includes the occasion of, or anniversary of, a marriage. This will have to be amended to include the ceremony of a civil registration of a Civil Partnership.

  Secondly, clause 26 of the MIB, lists `excluded provisions', whereby nothing in the MIB permits a decision to be made on behalf of another person with reference to consent to marriage or divorce. Amendments will be necessary here so that consent to the formation and dissolution of a civil partnership cannot be made on behalf of another person.

  Finally, Schedule 3 lists provisions applying to existing enduring powers of attorney, which will continue under the Bill. Unlike LPAs, when an EPA is registered, notification must be sent to certain listed family members including husband and wife. Introduction of Civil Partnership legislation would require an amendment here so that any Civil Partner is notified.

  For an LPA, persons notified on registration are left to the choice of the donor to allow flexibility and cater for more diverse family and caring situations that exist in the modern world. Therefore it already encompasses same-sex partners and would require no specific change.

  The Department for Trade and Industry published `Civil Partnership—A framework for the legal recognition of same-sex couples' in June 2003. The Consultation period is now complete. The responses are now being considered by DTI, who intend to legislate as soon as parliamentary time allows.

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