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.
Remaining Questions as requested by the
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
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"
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
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 Billthat
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
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
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 Billafter 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 qualificationwhat 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 checklistincluding
considering the wishes and feelings of the person, consult with
others if appropriate and take the least restrictive decision
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
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
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
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
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
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
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
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
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
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
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
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
Baroness Knight's concerns regarding the
case of Olive Nockels and its relevance to the Draft Mental Incapacity
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
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
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
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.
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' principlesee 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 personincluding 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 affairsthe donee may make gifts on customary occasionswhich
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 PartnershipA 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.