Taken before the Joint Committee on the Draft Mental Incapacity Bill
on Wednesday 10 September 2003
Carter, L. (Chairman)
Barker, B. Mr John Bercow
Fookes, B. Mrs Angela Browning
Knight of Collingtree, B. Stephen Hesford
McIntosh of Hudnall, B. Mrs Joan Humble
Pearson of Rannoch, L. Huw Irranca-Davies
Rix, L. Laura Moffatt
Memorandum submitted by the Law Society of Scotland
Examination of Witnesses
Witnesses: MR ADRIAN WARD, Convenor, and MR DAVID McCLEMENTS, Member, Mental Health and Disability Committee of the Law Society of Scotland; MS ELIZABETH WHITE CRAIGMYLE, Principal Solicitor for ENABLE, Law Society of Scotland; examined.
Q1 Chairman: We would like to start this afternoon's proceedings, and I welcome you and thank you for attending. I have some house-keeping points before we proceed to the questions. Even though we have the microphones the acoustics in these rooms are not good so if you could speak up we would be grateful; we are extremely grateful for the written evidence and the fact that you have found the time to attend; the session is open to the public and it may be recorded for broadcasting; there will be a verbatim transcript of the evidence and you will be able to check the text for accuracy before it is published in the report; as you have already seen, I am afraid proceedings have to be adjourned for divisions in both Houses which may occur and, if divisions occur, I will adjourn for ten minutes; I think there is a note of the Members' interests which are relevant on the table in front of you; and, generally, we are a Joint Committee which is charged to examine the draft Bill. We are not producing a White Paper on mental incapacity, and we have tried to structure the questions which you have seen in relation to the structure of the Bill, and the experience that you have had in Scotland would be extremely helpful to us. Mr Ward, would you start by introducing your colleagues?
Mr Ward: Thank you. I am a Scottish solicitor and Chairman of the Mental Health and Disability Committee for the Law Society of Scotland. We are grateful for this opportunity to come down and we hope that our experience in Scotland will be of some help to you in considering what appears to us to be a rather different piece of proposed legislation before you. I had the opportunity of preparing the first draft of our memorandum of comments and I take it we can take that as read. If so, I am going to introduce my two colleagues. Two matters were not fully covered in that memorandum: firstly, just what in simple terms the Scottish legislation does encompass and David McClements will say a few words about that, and you may have picked up from our memorandum the importance of our general principles, and Liz Craigmyle will say a few words about that.
Mr McClements: Our Act has seven parts to it. Part 1 contains the general principles but in addition it contains the roles and responsibilities of different agencies operating under the Act. Part 2 deals with the creation and exercise of continuing powers of attorney and welfare powers of attorney. This part sets down the main obligations on attorneys, the powers of the court and the role of the Office of the Public Guardian. Part 3 created an authority to intromit with funds belonging to an adult. It can only be used to access funds in a nominated bank account, and its operation is controlled by the Office of the Public Guardian, to whom the intromitter is accountable. Part 4 makes provision for the management of finances of an adult by a registered establishment. This will become operational from October of this year. By regulation a limit of £10,000 has been set for this type of management, and monitoring again is exercised by a public body, the Care Commission. Part 5 establishes the authority to treat by medical methods with appropriate certification other related matters including the authority for research. Part 6 creates intervention orders and guardianship orders, both for financial and welfare matters. Intervention orders were proposed by the Scottish Law Commission for the purpose of one or more orders which may not have one-way purpose. The functions of guardians are detailed in this part of the Act, together with the methods by which their actions are supervised. Finally, Part 7 deals with a miscellany of issues such as transitional arrangements from pre-existing law and the creation of the new offence of ill treatment and wilful neglect.
Ms White Craigmyle: The new Millennium heralded the beginning of exhaustive on-going multi-disciplinary training relative to the then Bill, and now the new Act, and everyone was, and still is, on a steep learning curve. Training events ranged from hundreds to only a few participants and they included adults with incapacity, those with learning disability, with mental health problems, with head injury, with dementia. Trainers emphasised that, if nothing else, participants should leave the event with the gateway principles foremost in their minds. If they wished to intervene in the life of an adult then these principles, the first four of which are enshrined in the Act, must be met, and arguably the fifth principle should also be enshrined. The principles are simple: they are the principles of benefit, past and present wishes, views of relevant others and least restrictive intervention and, finally, encouragement of skills. Extensive accessible training materials have been produced by the Scottish Executive, the Office of the Public Guardian, voluntary agencies such as ENABLE, SAMH and ASAD. Websites carry extensive regularly updated guidance. The executive introduced amongst its material an aide memoire in the form of five principles printed on a credit card sized card which was very popular. The perfect piece of legislation does not exist but the Adults with Incapacity Act has generally been welcomed and embraced as an empowering piece of legislation with the emphasis very much on the adult's capacity. It has increased the profile of independent advocacy, and it has given many vital voices a voice.
Q2 Chairman: Thank you. If I can start, what advantages are there in requiring evidence of a defined mental disorder as a diagnostic threshold above and beyond a test of a person's capacity?
Mr Ward: I think the general pattern of legislation of this type is to have a fairly wide gateway which enables one to access the legislation and then careful controls before one actually intervenes. At the stage of the gateway where one can potentially access the legislation, I note differences between your draft Bill and our Scottish Act in two areas. First of all, yours has a gateway of mental disorder. Ours has a gateway of mental disorder and physical inability to communicate. I think there are potential difficulties in your narrower gateway - for example, an advance statement operates during incapacity, if incapacity means only incapacity through mental disorder. It would not operate where there was a complete physical ability to communicate. Secondly, our definition of incapacity relates to incapacity both to act and to make decisions. I have difficulty in following your draft Bill which has a definition of incapacity relating solely to making decisions, yet for example under the general authority only permits acting which makes one wonder whether that means an Act that excludes a decision? What does it mean?
Q3 Chairman: I am not entirely clear. If you have in Scotland a mental disorder but you can communicate, how is that caught by your Act?
Mr Ward: There are two gateways, in effect. The broad and most common one is mental disorder which has a wide definition and is the same definition as in our mental health legislation. It covers most situations, in fact, of incapacity other than the situation of a complete inability to communicate for physical reasons. We have that gateway also.
Q4 Chairman: Would that mean if somebody, for example, had no mental disorder but was deaf blind and could not communicate, they would still be caught by your Act?
Mr Ward: They might be but only if they were completely unable to communicate because another feature of our Act is an absolute obligation that if someone can be communicated with, or even if they have incapacity if their wishes and feelings can be accessed by any means whatsoever, they must be accessed and at the level of capacity we only have incapacity through inability to communicate if that cannot be done at all. It is the same with wishes and feelings. I do happen to know that one of your witnesses in the second batch from Scotland who is quite well known to me has written some very interesting papers on accessing the thoughts of people who would appear to most of us to be totally unable to communicate. In Scotland now, if it is possible, even if only with very skilled assistants to communicate, we must.
The Committee suspended from 4.01 pm to 4.20 pm for divisions in both Houses.
Q5 Chairman: Firstly, I apologise. I am afraid this is going to happen again. It is at the time of year when both Houses are extremely busy, particularly the Lords. To continue, it has been pointed out to me on the point made about the difference between the two Bills that in the draft Bill, in clause 2(3) it says, "A person is not to be treated as unable to make a decision unless all and practical steps to help him to do so have been taken without success" Does that meet the point you were making about the difference between the two Bills?
Mr Ward: I think the language in the Scottish Act is just a little stronger on the equivalent point. Our Act says, firstly, on the inability to communicate, "A person shall not fall within this definition by reason only of a lack of deficiency and a faculty of communication if that lack or deficiency can be made good by human or mechanical aid, whether of an interpretative nature or otherwise."
Chairman: I see. That is an interesting comparison which we will take on board.
Q6 Stephen Hesford: In our draft Bill there is a presumption of capacity which I see as very important. Do you have the same presumption, and is it spelled out on the face of your Bill?
Mr Ward: We have a strong presumption of capacity in our law, anyway. Unless my colleagues correct me, we do not need that presumption because we have our principles so tightly limited in any situation in which we would intervene anyway. I mentioned earlier the gateway - the gateway is incapacity. There has to be incapacity and then we still do not do anything, we do not intervene, unless very stringent principles are satisfied.
Q7 Stephen Hesford: From what you were saying before, is that seen as a positive or as a negative, to access something that you otherwise would not have because of your incapacity?
Mr Ward: What I have termed the gateway is a positive. The concern in debate was that we should not exclude anyone who might potentially benefit from the Act's provisions, so at the level of the gateway we want the broad gate where we have it, but before we intervene, before we apply the Act's provisions which is immediately discriminatory - we are doing it for the best of reasons but we are dealing with somebody differently because of their disability and to some extent taking away their right to act or make decisions and putting some other mechanism in place - it is restrictive and a very stringent test.
Q8 Mrs Browning: In the Bill before us capacity assessment seems to be based more on a functional approach, whereas in the Scottish legislation you seem to have a little menu of clearly defined descriptions of mental disorder, including, I note, any mental illness, personality disorder and learning disability. I would be very concerned about that and would like to make two points: firstly, the actual writing in of personality disorder on a Bill - which I think is extremely difficult to define, not least because it is a spectrum - and also how much you define in Scottish law "learning disability". Is that based on the old IQ test? How do you define that?
Mr Ward: Liz is from ENABLE and is a specialist in learning disability, so she can answer the second part of your question. My personal view has always been that I have had some concern about personality disorder and such a definition for the reason you give. One could say that probably almost every personality has its little disorders somewhere within it, and some to a rather greater extent, but in the context of arguing capacity legislation, for the reasons I have given, that is not a great problem because we are not applying any provisions to anyone just because they come within that definition. We only apply them if they come within that definition, and then the principles are satisfied.
Ms White Craigmyle: On the learning disability front, our law of all dementia is mental handicap which is now resisted in this day and age, and the definition that my organisation tends to use is "related to birth" or "shortly after birth" but we recognise that there can be acquired learning disability also through head injury or progressive genetic conditions, of which there are many. I recognise the difficulties, however, in what you are saying about the definition of learning disability and how it is perceived, but it is in there and on the face of incapacity as we have it.
Q9 Lord Rix: In terms of learning disability, has the Act made a great deal of difference to people with learning disability, as such? Has it made a difference yet to carers? Has it made a difference to staff or professionals? Has it helped in any way to make their lives better at this stage?
Ms White Craigmyle: Yes, I believe it has made a difference. The training events have been pretty exhaustive, as I said in my opening statement, since the beginning of the Millennium and they are on-going. Much of my training is to carers or to people with learning disabilities themselves and there were many good things to come out of the big initial training events, the ones with over 100 attending each event in a multi disciplinary sense. One of the things that they focused on was that much could be learned, if you like, from the coal face, and those involved in caring or people with learning disability themselves were the ones who were being proactive in making sure the professionals involved in the life of a person with a learning disability became aware of the content of the new Act and of what it could mean to that person and to their carers. For the very first time in our legislation it gave an empowerment to carers to have a voice and to interact and talk to the doctors primarily responsible - normally that would be GPs but it could be a consultant - and say to them, "Here is what I know about the adult; here is the adult's best and worst performances; I see him or her on a good day and a bad day and here is what I think the adult is capable of." Generally I feel very much that it has enhanced, people are embracing it, it is not perfect but it is welcomed, and they are as comfortable at this moment in time as they can be with it.
Q10 Baroness McIntosh of Hudnall: You mentioned earlier on in your evidence that there was some degree of overlap between the mental health provision and the mental incapacity provision particularly in the definition of disorder. Do you think, drawing on your experience, that it is necessary to have separate legislation for mental incapacity and for mental health, and would, in your view, the coherence of implementation in those areas be improved if the two areas were combined under one legislative framework?
Mr Ward: Firstly, what is mental health law? In Scotland our Mental Health Act has always been rather narrower than the English Mental Health Act. The English Mental Health Act contains in Part 7 contains a lot of financial management provisions which we would class as incapacity matters, not Mental Health Act matters, so there is a question of definition. Back in 1986 I think I was the first person to suggest to the Scottish Law Commission that they should carry out a comprehensive review of incapacity law and mental health law. Having recorded that, I would say that I do favour the separate treatment of the two areas involved because they are two different subjects. Mental health law in its core sense is to do primarily with forms of intervention, compulsory intervention. Incapacity law is quite a separate matter: it is to do with addressing the difficulties which some people may have in acting and making decisions for themselves across a wide range of purposes. We have had recent reform of both: we now have a new Mental Health Act on the statute book about to come into force. We had two separate processes of review and consideration, but very much in parallel, very much linking to each other, and I think even down to questions of terminology there is a risk of confusion between the two. There is confusion on your door here which talks about the "Mental Health Incapacity Bill"!
Q11 Baroness Knight of Collingtree: I think it could be said, Mr Ward, that our major job on this Select Committee is to see how and in what way we can improve the draft Bill, and on that point I would just like to ask you two quick questions. Firstly, might the inclusion of some explicit general principles improve the draft Bill, and I also want to ask you about the best interests test. Does this test, do you think, provide the necessary protection from abuse for adults with impaired capacity? I think that question is important to put to you because I think you considered the concept of best interests was inappropriate in Scotland in relation to decisions made on behalf of adults with impaired capacity. Could you comment?
Mr Ward: Our general principles, absolutely, are serving us well. They appear at the outset of our Act: they apply to any intervention which can mean a decision by a court, a decision by somebody with some form of authority, a decision by someone acting anywhere in the process that may confer authority, a decision not to do something is an intervention, and our principles apply really throughout the whole legislation. They are a major safeguard and also a very considerable help. Because I specialise I tend to get difficult issues coming to me, and very often if one sits down and says "Just a minute, test this against the general principles", you are well on the way to the best answer. If I were making recommendations I would recommend the concept of much stronger general principles with overriding force. Ours apply to the extent that the exclusion of liability provisions in our Act do not help you if you agree to the principles. Secondly, on best interests, there was consensus, I think, in Scotland that this was appropriate in child legislation and not in adult legislation. The best I can probably do is refer you to what the Scottish Law Commission said on the subject. They basically adopted a principles approach rather than a best interests approach, and if you would bear with me for a moment because I think this is quite important I will read what they said. "Our general principles do not rely on the concept of best interests of the incapable adult. We consider that "best interests" by itself is too vague and would require to be supplemented by further factors which have to be taken into account. We also consider that "best interests" does not give due weight to the views of the adult, particularly to wishes and feeling which he or she had expressed while capable of doing so. The concept of best interests was developed in the context of child law where a child's level of understanding may not be high and will usually have been lowered in the past. Incapable adults such as those who are mentally ill, head injured or suffering from dementia at the time when a decision has to be made in connection with them, will have possessed full mental powers before their present incapacity. We think it is wrong to equate such adults with children and for that reason would avoid extending child law concepts to them. Accordingly, the general principles" - which they set out - "are framed without express reference to best interests", and I was reading from paragraph 2.50 of the Scottish Law Commission Report on Incapable Adults.
Q12 Baroness Knight of Collingtree: In addition to those important points that you have put to the Committee, would it not be appropriate also to point out that judgment on what is the best interest, for all sorts of reasons, can vary very considerably indeed?
Mr Ward: I have proposed in some of my writing almost a hierarchy of decision-making. At one end we have the adult's competent decision. We may be able to get a competent decision from someone with impaired capacity about parts of a composite decision. We may have clear wishes and feelings from them, and some of these are instinctive. We see proposed very complex mechanisms for assessing decision-making capacity. If we think about it, the most important decisions in life we tend to make instinctively - the career we follow, who we marry, the sort of place we like to live in. Can we really pick up some of these rather theoretical methods of decision-making and apply them to those decisions we make? We make decisions instinctively and we make them on a habit basis. Somebody who may be quite impaired in capacity may always choose tea rather than coffee when offered it because they always have done. In many ways you might say they are incompetent but it may still be a valid decision. We then can build up a picture of what somebody's ethos is from their family and friends and someone unrelated to them. Deciding what is in their best interests, in my view, is almost at the end of the hierarchy of possibilities. If we have no information about the person then perhaps the best we can do is for me to say, "Well, what is in your best interests?", but on dealing with adults my own view is that that is a fundamentally unsatisfactory approach.
Q13 Huw Irranca-Davies: I can understand the reasoning behind the differential between adults and children but do you think there is any case to be advanced as we look at our legislation for extending that into, if you like, the grey area of the 16-18 year olds?
Mr Ward: Our adults are adults at 16. Our child law effectively stops at 16 and our Incapacity Act definition of an adult is someone who has attained the age of 16. Basically the thrust of Scots law is that adulthood starts at 16 but for some purposes is qualified up to 18, so probably our experience is not going to be so helpful.
Q14 Mr Bercow: I understand your concern that adults should not be patronised, Mr Ward, but in order that it is not merely - as I am sure it is not - just a semantic dispute, could you for my benefit give what you think is the best practical example of how the benefit criterion is more appropriate than the best interests criterion?
Mr Ward: I think it is, for instance, somebody living in very odd and in many ways unsatisfactory circumstances, and in a very poor form of accommodation. In our approach you would say, "Is this what they have chosen? Is this where they have always been living? Is there really a benefit to that particular adult in taking them out of where they have chosen to be?", whereas if, with no knowledge of that person, you and I walked in together we might well agree and say, "Goodness me, their best interests might be that we should get them out of here right away."
Q15 Baroness Fookes: But best interests in our draft legislation is qualified in a number of ways, including the person's wishes. Does that not make a difference? It is not best interests on its own, is it?
Mr Ward: It helps to make some difference but it is still the starting block. We just start with principles.
Q16 Mrs Humble: I was going to raise a very similar point because you said in your objection to best interests that you would then have to be qualified in a variety of ways and you would have to expand upon it, and of course in the draft Bill it is expanded upon because there is a checklist. Does that checklist answer your problems? Does it deal with the problems that you believe arise from the best interest description? Does that checklist reflect the statement of principle that you have in your legislation?
Mr Ward: I do not think it does to the same extent, no. Language is important and it still does start with the concept of what is paternalistically in this person's best interests, and I think compared with our principles our principles are stronger and more focused on the adults as a person and on non intervention at all, unless it is clearly shown to achieve a benefit and to be the least restrictive.
Q17 Stephen Hesford: Is there a practical concern based on previous experience, ie before the implementation of your newish Act, what my colleague over there called a patronising view, because sometimes when one deals with a carer one feels that, with the best of intentions, the carer is taking decisions which ultimately could be said to be in their best interests as a carer rather than the person that they are caring for.
Mr Ward: That is why our legislation has nothing equivalent to your startling proposition of a general authority!
Chairman: I think we are coming to that later on.
Q18 Stephen Hesford: But, in terms of best interest, is there any evidence or example that your method addresses that potential problem?
Mr Ward: Our comparison and experience obviously has to be a comparison between what we experience now and what we were experiencing before our Act was introduced.
Q19 Mrs Browning: To follow up, I agree that there are very often times when carers put a point of view that is perhaps their view and their interest rather than the person they are caring for, and I say this as a carer myself. There are also times, however, when the carer, up against "authority" for want of a better word, finds that authority's view is based not on anybody's interests but on the resources they have to hand at any given day of the year. How do you deal with that?
Mr Ward: By applying our general principles rigorously to both.
Q20 Mrs Browning: You must have more resources than we have, then!
Mr Ward: Yes. I suspect that more often the principles have been used to give authorities a hard time than they have been used to give carers a hard time, but to a certain extent the approach is objective and there is the obligation to take account of the relatives and primary carers' views. Anybody making a decision has to do that.
Q21 Laura Moffatt: I am interested in the comparison. We are trying to tease out on this Committee the difference between what you clearly see is the benefit of not having just a general view and the fact that there must be a benefit to a particular person if you are to achieve the outcome you are looking for. This prelegislative scrutiny has attracted a lot of attention - perhaps unfairly - because some people have focused on the problem of artificial feeding and hydration as one of the basic things we are attempting to deal with. We see that as not being true and probably unfair, and we need to broaden people's aspects of what we think we are trying to do here and try to get them to understand it is much wider issue. But could you tell me under the Act that you have how you would describe withdrawal of artificial hydration and artificial nutrition as a benefit to that particular person?
Mr Ward: Firstly, I should point out that while refusal and withdrawal of treatment was a topic included in the draft Bill for Scotland prepared by the Scottish Law Commission that was dropped by the Scottish Executive in our legislation, so we have had the benefit of discussion and consideration of that point in the lead-up to our legislation. Because of that I can answer the second part of your question and I may come back to first part. It was never envisaged that we would be saying that to withdraw some form of medical intervention would be a benefit. The result that our principles produce in that situation would be to ask the question, "Is the medical intervention a benefit? Is the provision of the artificial feeding or hydration a benefit?" If it is judged not to be a benefit or to have ceased to be a benefit, it is that intervention which is no longer justified and is not given or is withdrawn. So there is not a benefit in withdrawal, but the provision or the treatment which is the intervention may cease to be a benefit.
Q22 Laura Moffatt: But when questioned before you said that not taking action was a legitimate intervention?
Mr Ward: Yes.
Q23 Laura Moffatt: So that gives it equal status?
Mr Ward: Yes, but that is the view the Scottish Law Commission took. They recognised the difficulty of the point, and that is the approach they took.
Q24 Baroness Knight of Collingtree: The BMA recently decided that they would call giving food and liquid through all these methods "treatment". Has that altered your own way of managing affairs of this kind, because there is a great deal of concern about the fact that, being called "treatment", feeding people can be disallowed or stopped.
Mr Ward: I am aware of that debate: I do not think that the issues of terminology are having an effect of which I am aware in Scotland, and these are essentially issues of terminology. I am aware that some legal systems, not British ones, make a clear distinction between the care and treatment and I do not think we tend to in the United Kingdom. I do not know if my colleagues agree?
Mr McClements: I think we agree with that.
Lord Rix: Is there not case law in this regard?
Q25 Chairman: I was about to ask that. Would the Bland judgment, which I think has driven the BMA view, have any influence or effect in Scotland? If there were a case brought to court about withdrawal of treatment, would the decision of the Law Lords here in the Bland judgment have any effect?
Mr Ward: We tend to look at a case called the Law Hospital case in Scotland, which is the name of the hospital where the lady was, and that is our leading case on the subject. Part of the reason why this topic was not carried through into our legislation is that that case arose after the Scottish Law Commission had reported, and the Quarter Session provided some very clear guidelines on when they considered that withdrawal or termination of treatment might be appropriate and on procedural aspects as well, so we have switched to a judicial development of this area of law. The official reason given by the Scottish Executive for not retaining such matters in the legislation is that "attempts to legislate in this area will not adequately cover all situations which might arise and could produce unintended and undesirable results in individual cases".
Q26 Chairman: Does that mean they are leaving it to the courts to decide?
Mr Ward: Yes. The courts have greater flexibility and it has been left to the courts.
Q27 Chairman: It is the Scottish equivalent of common law, in effect?
Mr Ward: Yes, based on the Law Hospital case which you could say in rough terms is the Scottish equivalent for us.
Q28 Chairman: That is very helpful indeed.
Mr Ward: I am not saying that is necessarily a view I would personally advocate, but that is what happened in Scotland.
Q29 Baroness Fookes: Could we ask what you do advocate, then?
Mr Ward: Both on this and the other topic that was dropped from the Scottish legislation which is the question of advance statements I think I would have preferred the clarity of putting these into legislation and having it as part of the scheme of the legislation so the interrelationship of these elements would have been clear, but I would have hesitated because there is quite a degree of force in the argument that, if a subject is developing fairly rapidly and, for example, views on what is and is not treatment are changing, there is certainly a very stateable argument that it is better to let the courts respond and develop principles for a little longer before fixing the matter in legislation. I am a little ambivalent about it and I can see the arguments both ways.
Q30 Chairman: We have had an enormous number of submissions of concern over this aspect of the Bill. Did you have the same concern in the consultation period and in the drafting of your Bill?
Mr Ward: Yes. I was principal spokesperson for an alliance that was campaigning for the Bill. It was quite a substantial organisation and we had more than 70 organisations in it with over 30 national organisations. We had great difficulty over these topics and I believe that, in fact, that difficulty was part of the reason for dropping some of them. They really almost hijacked the agenda. Those who had strong views were using our legislation to have an argument about those views which was not relevant to what appeared in the draft Bill, but the argument was loud and it did threaten to draw attention away from the vast bulk of the provision.
Q31 Baroness Barker: Following that up, is the consequence of that decision that you will, for the foreseeable future, rely on case law?
Mr Ward: In the matter of advance statements and in the matter of withdrawal and termination of treatment, yes.
Q32 Mr Bercow: We have had more of an inkling of your thinking on the next subject, I know you will want to elaborate on it. How adequately, if at all, is the scope of the general authority defined in the draft Bill or is it too little circumscribed? How do you recognise it will work in practice and tacked on to that, and related, how useful is the concept of reasonable belief in the capacity?
Mr Ward: The idea of a general authority fills me with dismay. If somebody thinks my capacity is becoming impaired they can do what they think is best, they can act. What does it mean "they can act". I cannot see how that can be compliant with the European Convention on Human Rights. If somebody is making decisions about me or for me they are taking away my right, albeit for very good reason, they are taking away my right to make those decisions myself. Quite clearly under Article 6 of the European Convention that should only be done with the authority of a court after a hearing.
Q33 Mr Bercow: The issue of liberty and consent is extremely important and I do not grapple with that but just to elaborate, do you think in practicable terms if we were to ignore Mr Ward's advice and say "he can do what he likes in Scotland, we think that we have been advised sufficiently in the draft and we can go ahead as we think fit", there is going to be a ream of damaging practical cases that will result and cause us to repent?
Mr Ward: In some of your papers I saw a figure that the Master of your Court of Protection quoted, quite a high percentage of cases of powers of attorney where he believes there was abuse, there was misuse of powers. That is quite a high percentage in a situation that is already regulated and known about. I think if one confers that authority to do what they like on people who are not regulated, not known, not supervised the risk of misuse of that authority will be grave. One thing that is clearly lacking from that, even compared with the most simple procedures, is the most simple procedures. We have very simple procedures in our legislation which requires somebody to say, "Just a minute, is this person's capacity impaired? Is it impaired to a degree that they cannot act or decide in a particular matter that we are addressing therefore do we need to put in place a procedure?" I suspect that the general authority will stop people even considering such a point. It will be used retrospectively as a justification for what has occurred.
Q34 Mr Bercow: And administrative convenience will end up taking precedence.
Mr Ward: Everybody's convenience. Of course there will be many, many people who will exercise it very wisely, very sensibly and very responsibly, but it would be equally easy to proceed otherwise.
Mr McClements: I was just going to add to Mr Ward's comment, I think a practical problem could well be general authority, where an individual engages with a third party organisation in terms of being able to show clearly that they actually have the authority that I mentioned in the opening statement. We have a section, part three, which deals with financial institutions. I have great concerns as to how financial institutions would view and recognise somebody who claims to have general authority and how they would deal with that.
Q35 Baroness McIntosh of Hudnall: I think it is pretty clear that there are certain aspects and general authority principles that are open to question. On the whole what you have said is viewing the position from the standpoint of the person requiring care, the incapacitated adult, there is another aspect to it, the protection it affords to the carer, in other words it frames the carer's action but it may not do so entirely adequately. Can you explain in what way carers within the Scottish legal framework are protected in relation to actions they may have to undertake in certain circumstances there and then on the day, as it were, which could retrospectively be construed in a particular way? In what way are they protected within your framework?
Mr Ward: I am going to answer your question to start with slightly obliquely, to a large extent the move for reform in Scotland started with carers. We started by trying - and I mentioned this in our memorandum - to use our common law principles in modern ways, providing procedures to create formal guardianship. This was driven typically by the parents of young adults with learning disabilities who were saying, "we know we are making these decisions, we are ordering our children's lives, we have no authority, nobody has thought about what we are doing, nobody is controlling whether what we are doing is appropriate and because we are doing it that way also when we are dealing with authorities we are just another adult in the same house". To a large extent those developments which were the precursors of our reform came from carers because they were worried about these aspects. I think there is all the difference in the world between making representations about the living conditions or life-style or activities of your young adult learning disabled son or daughter living in some accommodation under somebody else's care because you have welfare guardianship powers which authorise you to make such decisions, and you always have to obey the general principles, compared to being just a parent trying to have something done because you do not think the way it is happening is appropriate.
Q36 Lord Rix: Under your Act how do the actual powers which you give to the parents of learning and disabled young adults operate, do you have to go to court to seek them?
Mr Ward: If one is looking for guardianship powers, yes, you have to apply to the local Sheriff Court. If we are seeking welfare powers we have to produce a couple of medical certificates, one of which is required to be from a consultant psychiatrist, we have to give notice to the local authority, whose mental health officer also produces a report. These reports are submitted. The whole process is governed by the general principle, so one has to justify each power sought on the benefit and intervention basis and on the other principles. The guardian will then have some powers tailored to the circumstances and abilities of that particular adult, even with those powers the guardian must then continue to apply the principles so they use them in a manner consistent with the principles.
Q37 Lord Rix: Have there been many powers granted of this nature as yet?
Mr Ward: David may have some statistics, I did not bring those.
Mr McClements: The statistics for the first six months in relation to appointments of welfare guardians are as follows, there were 72 appointments in the first six months, from April 2002 to September 2002, with 108 pending at that stage. There has been continuing development in that, there have been more cases. It may be interesting in relation to the statistics that the number of powers of attorney - the power of attorney is the capability to grant welfare power of attorney - in the first 18 months of registration were 3,890 continuing powers of attorney, lasting powers of attorney and an additional 1,439 which had joint powers of welfare and continuing powers.
Mr Ward: And 189 purely welfare.
Q38 Lord Rix: Does ENABLE think that is sufficient for the time that has elapsed since the passing of this Act?
Ms White Craigmyle: We probably think it is. It is important to point out there are of course those people with learning disabilities who understand a power of attorney and even understand possibly with some support. In my legal practice with ENABLE we have assisted 15 individuals so far with learning disabilities to enter into the granting of a power of attorney themselves in favour of an individual of their choosing. Usually more support is needed for people with learning disabilities but if we are in doubt of course we consult with the relevant GP or doctor. Given the passage of time, yes, I think the statistics that David has quoted are reasonable.
Q39 Huw Irranca-Davies: I have listened with great interest to your comments on general authority and your strong reservations about it. I was going to ask you in respect of Clause 7 of the draft legislation we have in front of us whether you thought the restrictions on the use of general authority were adequate? I suspect your response is going to be that the fundamental premise of the general authority is flawed in such a way that the restrictions themselves are unworkable?
Mr Ward: That would be half my answer. The other half was one I alluded to earlier. I do not know what is authorised. It is lawful for any person to do an act, not to make a decision. You make the distinction between decisions and acts, what acts are not decisions? Some things are more clearly acts and some things are more clearly decisions, acting to safeguard your interests in a more general sense is acting, it usually comes down to implementation in making decisions. Not only do I have reservations about the concept altogether but I find it difficult to look at the restrictions because I do not know what it is that is being restricted.
Q40 Huw Irranca-Davies: In your expert opinion what would be the practical implications of going forward currently with the general authority as it is and then trying to impose restrictions? How would that be tested? Could that be tested effectively? Would it work?
Mr Ward: I am sure you would have lots of litigation for at least a decade. I am not sure that of itself would be something that you would want to do knowingly.
Q41 Huw Irranca-Davies: Are you convinced of that?
Mr Ward: Pretty sure. In some ways if there was not lots of litigation I would be even more worried because people would just be going ahead and using all sorts of situations, appropriate or inappropriate, without challenge. I would emphasise part of our provision, which is a coded provision, a comprehensive but not exclusive provision, includes investigatory provisions. The Office of the Public Guardian in Scotland is carrying out investigations in any situation where it is suggested to him that the financial interests of an adult are at risk and it is not just related to particular procedures situated where a power of attorney is in place, local authorities have an equivalent duty where welfare is at risk and you get joint investigations. We have these investigatory powers and they can be matched up with the public guardians and all forms of authority under our legislation which have been granted which are not just guardianship and intervention on the simpler forms which David has described.
Mr McClements: The other concern I would have is that in relation to general authority, and I do not think Adrian has touched on it, is the difficulty you might have between individuals, it is almost presumed there is one carer. If there are different carers expressing different views and indicating they have the general authority it is just a recipe for conflict in what is already a difficult situation for them and things will be made much more difficult.
Q42 Huw Irranca-Davies: Clause such as Subsection (2), "the general authority will be 'trumped' by a decision of a donee of a lasting powers of attorney or of a deputy", that is not sufficient to calm your fears?
Mr McClements: I do not think so because that presumes that someone has a power of attorney. We are talking about somebody who is subject to general authority, then it could be two or three individuals that are suggesting "I have general authority". I come back to the point I made about financial matters, I cannot see how that is going to work in practice. Where this is coming from in terms of provision of any form of care is at one level one can understand where it is coming from in terms of time to meet the needs of carers but I think our concern is that in all this that it is in the best interests of the draft Bill to benefit, as we have in our act, is the adult or the person, that it is their interests, whether it be in terms of benefit or best interest. The general authority is coming from the other standpoint, to make it easier for carers. I have grave doubts about that in its present form. One other point I just want to make is that I think there is a distinct lack of any definition of care. That again means that the whole concept of general authority is open to great confusion.
Q43 Chairman: Under your system is there a risk you will see over-prescriptive powers, going back to court each time an order is needed? What authority do carers have without a guardianship order? Are carers without a guardianship order acting without the power to do so under your system?
Mr Ward: If an applicant is coming along seeking powers which cannot be justified by reference to the general principle they will not be granted. One does find oneself in discussion in an application sometimes just how far to take the powers. One tends to work on the principle of powers reasonably expected to be needed. If you go beyond that covering possible situations the court will be unlikely to grant them. You can always go back for variation of the powers, the procedure for that is simpler. If you are varying financial powers or you are varying welfare powers you are proceeding under a variation procedure. If you seek to have financial guardianship extended to include welfare powers do you have to begin at the beginning and go through the court.
Q44 Chairman: If there is no guardianship order what is the authority that the carers are working under?
Mr Ward: They have no statutory authority. This is an issue which has arisen.
Q45 Chairman: They would have under our Bill.
Mr Ward: They would have under your Bill, yes. First of all the medical matters are a doctrine of necessity, "survives" and "impaired" and generally does not take away any principle which exists in law already. The principle of necessity, certainly in medical matters, may cover us and it may extend to some non-medical matters. The strong pressure under our legislation is if you perceive that you are going to need to exercise powers then get proper authority to do it. In financial matters you can do that very simply, in medical matters a doctor can do it very simply, it is one simple certificate which involves no more than the matters under good practice you would have to address anyway.
Q46 Huw Irranca-Davies: Can I ask another question which is to do with the use of force in two aspects, one is the restriction or misuse of force and the restriction of liberty from an individual's point of view but also from the carer's point of view that there is a reasonableness about the way which we approach the way they use force. I am thinking particularly of dementia where there is a safety risk to the individual that is being cared for. It could be argued that in that situation that the carer should be able to use a certain amount of restrictive behaviour to avoid getting into a perilous situation. How does your legislation deal with that?
Mr Ward: I think our general law covers both situations. If I see you stepping off a pavement in front of a bus and grab you and pull you out of the way I am not assaulting you but if I did that in any other situation it would be. That is the level at which we have cover, and only at that level, not in our legislation.
Q47 Baroness Fookes: Could I ask about what I would describe as casual care, in a sense the good neighbour living next door who may do things for somebody but probably not think of getting authority in your system, what happens to that person who may go out and do shopping and have to pay for it and then maybe take the money from the person?
Mr Ward: We do have a principle in Scots law that long predates our Act and has not been set aside by the Act which is a the form of agency of necessity and that still applies. The difficulty is that one does not have the authority, so if you then go along to the bank with a bank book they will say, "what authority do you have to do this?"
Q48 Baroness Fookes: I was thinking about something more casual, shopping and taking the money out of the purse, that kind of situation, not to unlock a bank account.
Mr Ward: This principle covers that but there is an element of risk and the risk is to the person that is doing that too. Under our system it is not very difficult, you do not have to go and see a lawyer if you want to access somebody's bank account to pay their bills for them and meet their financial needs. You get a form from the public guardian, he will give you any amount of help, he will even let you do it electronically, he will talk you through it over the telephone. You need a certificate from a doctor and you need a certificate from somebody who knows you and the person, you send them off and you will get a certificate of authority.
Chairman: We have a problem over time which is not of your making it is because the vagaries of Parliamentary voting. I would like to end the oral questioning now, you have seen the questions, would you be kind enough to answer the remaining questions for us. It is not your fault at all but we have your other colleagues who I think wish to get home tonight. It would be best if we draw this part of the deliberations to a conclusion. Thank you very much indeed, you are our first witnesses and you have been enormously helpful. A number of your answers will give us some food for thought. Thank you very much indeed.
Witnesses: PROFESSOR TOM McMILLAN, Chair in Clinical Neuropsychology, Glasgow University, MR MARK RAMM, Director of Clinical Forensic Psychology, Orchard Clinic, Edinburgh, MR KEITH BOWDEN, Consultant Clinical Psychologist, Forth Valley Primary Care, NHS Trust and DR DONALD LYONS, Consultant in Psychiatry of Old Age and Medical Adviser for Elderly Services for Greater Glasgow Primary Care NHS Trust, examined.
Q49 Chairman: I believe you were in the audience when I started. Can I, of course, welcome you. I do apologise about the timing, you realise it was out of our hands, it was what was happening in both chambers. If you would like to introduce yourselves. If you wish to make a short statement then we will proceed to questioning.
Dr Lyons: We have decided we will not make statements, I do not think we have anything to add to the statement that Mr Ward made, we would rather answer the questions that the ladies and gentlemen would like to ask us. I will introduce myself and then I will ask my colleagues to introduce themselves. My name is Donald Lyons, I am a the consultant psychiatrist. I specialise in the care of people with dementia. I have been the spokesperson for local psychiatrists on the Adults with Incapacity Act in Scotland and a member of the National Steering Group for implementing the Act.
Dr Bowden: I am Keith Bowden, I am a Consultant Clinical Psychologist with Forth Valley Primary Care, NHS Trust. I specialise in working with people with learning disabilities.
Professor McMillan: I am Tom McMillan, I am a Professor of Clinical Neuropsychology at the University of Glasgow. My areas of interest are in part brain injury and the rehabilitation of brain injury. I am seconded two days a week to the Glasgow Health Board where I advise them on the development of services for in brain jury rehabilitation in the Glasgow area.
Mr Ramm: My name is Mark Ramm, I am a Consultant Clinical Psychologist at the Orchard Clinic in Edinburgh, which is a hospital for mentally disordered offenders who are the detained under the Mental Health Act. I am also the British Psychological Society's representative on the Reference Group in Scotland which is looking at the implementation of our recent new Mental Health Bill.
Q50 Chairman: I would like to ask the first question, you will find these questions somewhat familiar, what advantages are there in requiring evidence of a defined mental disorder as a diagnostic threshold above and beyond a person's capacity? Is it important to maintain consistency in definitions between Mental Health and the Mental Incapacity legislation?
Dr Lyons: As you will have heard from Mr Ward the definition of mental disorder as contained in the Adult Incapacity Act is exactly the same as the definition of the mental disorder contained in the Mental Health Act, and that until recently has been "mental disorder" or "mental handicap" however caused or manifest. This is a wide-ranging definition of mental disorder. There was a lot of discussion leading up to the new Mental Health Act as to whether the definition of mental disorder legally should be narrowed and the answer eventually was no it should not. It remains wide. As with the Mental Health Act the Incapacity Act has the additional test of capacity in that the adult must be incapable of acting or making decisions or communicating decisions or understanding decisions. That is the test. Many people with mental disorder will not pass that test of incapacity and there is a grave, grave danger that we must all guard against that is written in great big letters "do you not assume an incapacity because a person happens to have a mental disorder". Concentrating on whether the person does or does not have a mental disorder is maybe the wrong way to look at it. There has to be something causing the incapacity, mental disorder is one, an inability to communicate is the other. The critical bit is the test of capacity, and that is what we must concentrate on.
Q51 Chairman: Is that the same point as the assumption in our draft Bill, there is capacity until proved otherwise?
Dr Lyons: That is a clear assumption in general.
Q52 Chairman: Do your colleagues wish to comment on that first question?
Dr Bowden: The importance of the functional test of capacity cannot be over-emphasised. It is very important in the Scottish Act that it is about decision-specific capacity. I think there is a danger if we start using terms like "incapacitated adults". We need to be very careful that we do not move into a situation where we are assuming people have or do not have capacity per se. It is important that it is about specific decisions, and that may be about specific decisions at different times in a person's life. It may be that at one stage in a person's life they are able to make that decision and at another time perhaps because of their emotional state or their other circumstances they may not be able to make that decision at that time. It is important that the legislation is robust enough to deal with that situation and to identify that.
Q53 Mrs Browning: In practical terms how do you deal with people whose conditions means they demonstrate variable capacity as a result. If I can give you a couple of examples, in the case of people with autism, even people high-functioning autism, their ability to conceptualise something is pretty limited. If you give them choices, "Would you like to do A or B?", and if that is not within the ambit of their own personal experience they would have huge difficulties, they may even make a choice that would totally inappropriate purely because they have not been able to conceptualise it. There are practical ways of going through that, if you were saying, "Do you want to go and life in A or live in B?", you overcome it by taking them to A or B rather than sitting round in a case conference. For example with schizophrenia where people may be going through an episode at any given point in time but later on may be in a recovery situation how in practical terms do you deal with those conditions?
Dr Bowden: I think the principle of minimum intervention is one of the important elements with the Act - and I am speaking as a clinician - that we should be intervening at the minimum level to assist that decision-making. An important emphasis in the Scottish Act is that the onus of communication is placed on the health professional, that we should be seeking to communicate with the individual in the most effective way to ensure that their contribution to the decision-making process is as much as it should be. With a person with Asperger's for example it is about specific time-related decision making and it may be that at one point we do need to implement the certificate of incapacity and take that decision on behalf of the individual whilst acknowledging as much as we can about what their desire is. On another occasion when we have been better at communicating or finding a way to assist that person to make that decision then they have the capacity to make that decision and we should follow their decision.
Q54 Lord Pearson of Rannoch : Would you accept that although mental health as a category can move forwards and backwards in various degrees over time there are some people who are so mentally handicapped, with such severe learning difficulties and intellectual impairment, however you want to compromise, they will never be able to make decisions for themselves or something of that kind. Would you accept there are people in that category?
Mr Ramm: There are many situations where it is very easy to make the decision they have a lack of capacity. I think that the legislation works very well in relation to be able to deal with their needs and the needs of their carers. What is often more problematic is there can be an assumption by many that that is always an easy decision and there are many, many situations where deciding whether somebody has capacity or they do not is very difficult. There are many borderline cases, as has been observed, there are case where a person's level of capacity to make decisions for themselves will change over time and there are many cases where a person will be capable of making a decision for themselves in one area, for example financial affairs, and not in another. Because of these more complicated cases what is required typically for clinicians and the individuals involved in the operation of the Act are very clear guidelines and very clear processes on which to make these decisions.
Chairman: We will to break for ten minutes. There is a vote in the Lords.
The Committee suspended from 5.29 pm to 5.42 pm for a division in the House of Lords
Chairman: We can now proceed.
Q55 Baroness McIntosh of Hudnall: Sorry about the interruptions. Just picking up from the discussion that was going on before we disappeared on the question of how you define incapacity and in what situations and so on, in our draft Bill there is clause 2.1 which lists some ways of testing whether a person is unable to make decisions. Is it your view that this is a helpful list? Is it comprehensive? Will it assist you as clinicians in making the decisions that you have to make?
Dr Bowden: I think there is a similar difficulty with this list as with the adults in the Incapacity Act in terms of the specificity that is involved in this estimate. I think it operates very well in terms of the straightforward decisions where it is very clear that someone has capacity about a decision or indeed where it is very clear that someone does not have incapacity about that decision, but in terms of the more complex decision-making that I as a psychologist would be involved in assessing, apart from giving me a general structure under which to operate, it does not really give me the gold standard of assessment that I would look for to give advice as to what that decision should be.
Q56 Baroness McIntosh of Hudnall: Can you say what is missing from it, is there an obvious thing that is missing from it, or is there something in your legislation that you would want to see included?
Dr Bowden: I think it is about the Codes of Practice and the level of detail that comes in in the Codes of Practice. I think the high level operation of this is fine but it is about how that is applied in practice and I think our experience is that different practitioners are interpreting this sort of high level statement differently in the way they apply it in practice, so the key is about further definition and detail at the Codes of Practice level.
Dr Lyons: May I make a quick point about that. Medical practitioners will like this definition and I know where it comes from because it is almost a direct lift from the Broadmoor Hospital case. For that reason, because it pertains to a judgment of medical treatment, doctors will quite like and will operate this quite well. I actually quite like it. I have to say I probably like it more than I like the Scottish definition. The thing that is missing from this definition is that the person may be able to make a decision but may not be able to secure his interests by acting on this decision. Mr Ward mentioned that earlier and that is something to think about. That is in the Scottish definition, it is not in this. The other comment I would make about this is not so much in 2.1 it is more in 2.4. As I specialist this particularly interests me and it concerns the question of memory. The draft Bill is quite right to say that a person shall not be regarded as incapable because he or she does not spontaneously remember the decisions. I have an outpatient clinic on Monday and I do not remember the decisions that I made there but I wrote them down and with a bit of luck I will go back and be able to read my writing and I will agree with what it was. That is the key, that there has got to be some degree of consistency to the decision-making. The person must either make the same decision consistently given the same information and/or when presented with a record of that decision they have to recognise that decision as they will. That is the issue of memory decision-making to my mind.
Professor McMillan: If I could add to that. The point seems to me to be the person has to retain information long enough to be able to make the decision because you can then return to the issue and check whether the decision is consistent. So it is not being able to remember the information, it is remembering long enough to make the decision. There are quite a few patient groups where that will be an issue. They can retain information but only for a short period of time.
Q57 Chairman: How do you handle the situation where a person retains the information and they welcome the decision and then they forget all about it and you come back to implementing the decision and they say, "This is all wrong I do not want to do this." What happens then? Is that person not capable?
Dr Lyons: That person is not capable if there is no consistency to that person's decision-making. My opinion then is that that person is not capable.
Dr Bowden: Unless they are able to give reasons for that change of decision.
Lord Rix: Surely, yes, that must be right.
Q58 Stephen Hesford: Just on the back of that answer, which I must say I personally found very helpful, can I just ask the panel having practised the Scottish version and having look at our version in simple yes or no terms which would you rather practise under?
Dr Lyons: Shall we take a vote chaps? Ring the division bell at this point!
Mr Ramm: Speaking personally there is no doubt in my mind that I would much rather work under the Scottish Act. I think there are advantages in several areas. We were hearing before about the general principles. I think they are a very important aspect of the legislation and they are very, very helpful for clinicians and for everybody in terms of interpreting how it should be applied and what they should be doing. I think one of the other advantages of the Scottish legislation at present is the issue of granting certificates of incapacity. There is something important, I believe, about there being something within the system that allows a more careful analysis or assessment for issues which have a higher importance or threshold, because there is a threshold issue. Obviously in practice one would not wan to make it too difficult for a GP and a family to care for, say, an elderly relative in terms of administering their finances. One would not want to make that too difficult for them to organise between them, but if the relatives for example were to decide that they were going to sell the relative's house, at that point the whole issue would deserve a much more careful assessment of the person's capacity in relation to deciding that issue. The certificate in Scotland makes it much clearer when there should be a multi-disciplinary assessment and the nature perhaps of this assessment.
Q59 Stephen Hesford: Thank you. Do you all share this view?
Dr Lyons: Let us be clear on the question that is being asked here. Is the question that is being asked purely about the definition of "capacity" or about the Scottish Act and the drafting of this Bill in general?
Q60 Stephen Hesford: To save time it was the global balance issue. For my part I could not see that you could split it up, so it is the whole thing really.
Dr Lyons: You can split it up. Personally I would not want to work under this Bill. If this became an Act I would not an to work under it; I would have grave reservations about it.
Q61 Stephen Hesford: As a practitioner?
Dr Lyons: But I do like the definition of "incapacity" in the Act with the provisos that I have laid down.
Q62 Chairman: Your colleagues agree?
Dr Bowden: Yes, on the Act as a whole as it stands I very much prefer the Scottish version. I think there are particular issues around general authority to treat. In terms of the specific aspect of definition it does come down to the detail about how that is operated in practice.
Q63 Lord Rix: I am coming from Mencap's point of view. We find that the title of the Bill and to a certain extent the Scottish Bill is slightly demeaning and slightly threatening. "Incapacity" indicates something whereas capacity is more positive. I notice in Canada in the equivalent Bill, which comes back to what you were saying just now, is called Substitute Decision and Advocacy Act, which is what you were saying a moment ago. I find - and I know this is Mencap's view but it is my personal view as well - the use of the word "mental" and " incapacity" has a threatening tone to it and covers a whole belief in the Bill. You are looking always on the negative side right throughout whereas if it is a more positive title you can have a more positive and friendly view of the Bill.
Professor McMillan: It is not clear to me there is an advantage in having the word "mental" in the title of this Act.
Dr Lyons: I agree.
Dr Bowden: Yes.
Dr Lyons: Yes, and I like the "Substitute Decision Bill", it is an excellent idea.
Q64 Huw Irranca-Davies: To return to 2(1) and the definition of "mental incapacity" your comments contrasted this aspect of the Code of Practice, and your position is that you feel quite content working what is laid down here with your provisos. In the way that legislation is drafted do you feel there is any suitable combination that would refer to Codes of Practice that could flesh out and add more detail and so on. Do you feel that this should be on the face of our Bill?
Dr Bowden: I think one example might be in terms of the use of the term "unless all practicable steps have been taken." What in fact does that mean? For a GP who has perhaps seven minutes to see an individual, what practicable steps has that GP to take in order to make a decision about capacity? Under the Scottish Act that GP should be ensuring that he or she is communicating well with the individual, that he is taking the wishes of the individual into account, that he is consulting with relevant others including the family and other carers who may be involved with that individual. How far that actually operates in practice is unclear. Our suspicion would be that some GPs, or indeed other medical practitioners, do so very thoroughly following all of the principles of the Act. Other GPs will take the view that it is not reasonable or practicable (which is the term in the Scottish Act) for them to spend all of that time to do it. They know their patients and will say, "I have made my decision under the principles of the Act", whereas I, as someone involved in supporting that individual, would argue to the contrary, so detail about what "practicable" means in the Code of Practice would be of great benefit.
Q65 Huw Irranca-Davies: On the face of the Bill?
Dr Bowden: I think Codes of Practice would probably be where it would sit better.
Dr Lyons: In all the Codes of Practice it has got a very clear step-by-step guide as to the best ways and the best environments to assess somebody's capacity - making sure we do it in an environment familiar with the person, supportive for them, comfortable for them and in a way that is best for them.
The Committee suspended from 5.55 to 6.04 for a division in the House of Lords.
Chairman: I am informed that we are quorate. Jill?
Q66 Baroness Knight of Collingtree: I am going to try and roll a few questions up. I think the first one I want to ask is in what ways would the inclusion or perhaps a more explicit emphasis of these general principles in our draft Bill actually assist practitioners working with people with incapacity? We have heard a good deal which has helped us very much on this particular principle, but I thought I should give you the opportunity to answer that question. I want to go on to say could you tell us the relative merits of the concept of "benefit" and "best interests" in this particular context. Is the proposed "best interest" check-list likely to be useful to clinicians working with people with incapacity? Would it for instance enable a balance to be struck between supporting the autonomy of the person with incapacity and providing them with protection? Finally I would like to say I was rather alarmed to hear Dr Lyons say that if a person was not consistent then he was incapable.
Dr Bowden: Touché.
Q67 Baroness Knight of Collingtree: I must admit that rather alarmed me. In the sphere of what we are talking about I was particularly thinking of someone who had one of those mental illnesses which they come and if the person takes their medication they go so that you could be inconsistent at one moment and fairly consistent the next. I was a little bit concerned about that. I am sorry to have rolled all those up but there they are.
Dr Lyons: Can I take that last point firstly. I said that was in relation to a very specific instance given where somebody makes the decision and then given the same information says, "No, I do not want that at all." If that is done within a very short space of time you have doubts about that person's capacity. Somebody's capacity may fluctuate, somebody may be incapable for a short time. That is a very important point to make - the capacity can either be temporary or permanent. There may be instances where you have to temporarily intervene to help somebody when they are incapable for a short period of time until they regain capacity, and then they are capable.
Q68 Baroness Knight of Collingtree: So there can be a time limit on incapacity?
Dr Lyons: Absolutely, absolutely, yes. It is not an all and nothing, it is not start and then continue. You only intervene using the Scottish Act for example for as long as that person is incapable and when that person retains capacity the Act no longer applies to them.
Q69 Baroness Knight of Collingtree: Do you think that would also apply to our draft Bill?
Dr Lyons: It might be worth making it a little bit clearer in the draft Bill that the capacity can either be temporary or permanent. Not having the Scottish Act in front of me I cannot remember but I think the Scottish Act says that; the Codes of Practice definitely do. If I come back to the other question you rolled up and particularly if I compare the best interests test within the draft Bill with the five principles in the Scottish Act, the very first thing the Scottish Act says is that there shall be no intervention in the affairs of an adult with incapacity unless that intervention will benefit the adult. That is the very first thing the Act says and that really sets the tone for the whole Act. I do not see that tone in this Bill.
Q70 Baroness Knight of Collingtree: The trouble with that is that people's opinion of what is beneficial for a certain person can vary greatly.
Dr Lyons: And I would argue that the benefit has to be evidence based. You have to be able to say at the outset, "Is what I am going to do likely to be of benefit to this person?" What is the evidence for that? I say that particularly with regard to medical treatment because that is my forte. If I can give you an example of that. One of the concerns that you will hear in this Committee is the use of sedative medication in people with dementia in nursing homes. What benefit is that having for that person? One might come along and judge it is in their best interests to be sedated but where is the evidence base for the benefit of that intervention? And in Scotland that is what you would have to test it against, and that is why I like the idea of "benefit", which I think is a more defined concept than "best interests", which I do not think is defined even in this.
Q71 Baroness Knight of Collingtree: But might it not be? Certainly there have been instances of this where some doctors have felt it was in a person's best interest to end their life.
Dr Lyons: I do not think any doctor in this country thinks it is the best interests of somebody to take active steps to end their life, no. We will probably go on to talk about issues to do with advanced conditions and deploying and withholding treatment. I want to say one thing on what Mr Ward said, for every one Tony Bland case for every one Law Hospital case, there are hundreds of thousands of people with advanced cancer, with advanced dementia, with advanced throat disease and we have to make decisions on whether or not to intervene day in day out. The Law Hospital case and the Tony Bland case were high profile but those are not cases that should dominate our thinking in this area.
Q72 Chairman: Almost all the cases you have just mentioned would have capacity. Is it right that if you have got advanced cancer you still have capacity.
Dr Lyons: No, in advanced cancer you may have brain secondaries, you may have lost capacity, if you have advanced dementia you may very well have lost capacity.
Dr Bowden: A person with a learning disability and cancer.
Q73 Lord Rix: There is a question here which flows on from that. To what extent can scrutiny by research ethics committees provide the necessary safeguards to protect people from exploitation for the purposes of research? I personally do not like the word "research" at all because I think, like "mental incapacity", it has a certain threat behind it, so I would rather they found some other word, like "treatment".
Dr Lyons: May I outline first of all what the Scottish Act says about research and my colleagues may like to come in, as I am not a researcher by trade. The Scottish Act does permit research involving people with incapacity under certain restrictions. It must be research into the care, treatment, causes, et cetera, of the incapacity itself. It must be research that cannot be performed in people who are capable. It says in the Act that the research must be likely to be of real and direct benefit to the adult. We all know that if what we were going to do was going to be of real and direct benefit, we would be doing it, we would not be researching it. That is not what research is about. The Act has to say that because of the general principle in the Scottish Act about benefit. Then it gives you a clause which says if it is not going to benefit the adult it must be likely, through greater understanding of the condition, to provide real and direct benefit to others who suffer incapacity. It is then up to the research ethics committee to decide what that link might be. Then it must involve no or minimal foreseeable risk of discomfort and must have a consent from a proxy with authority to give consent, or failing that the nearest relative, and that has caused some difficulty in undertaking research where there may not be a nearest relative or where the research may be inter-actions involving the nearest relative, perhaps even allegations of potential abuse where the nearest relative is not the appropriate person to get consent from. That has been highlighted as an issue for the Scottish Act. Maybe colleagues with research backgrounds might like to add to that.
Professor McMillan: I agree with what you say. The other category that I would mention is of course acute cases which may be presenting at accident and emergency where of course you cannot get consent, but where we do want to improve care and treatment. We want to understand about symptom persistence and psychological issues in these cases. At the present time it is quite difficult to do research in that category of case, although I note there is a comment in the draft Bill about the (?) case.
Dr Bowden: One further point on it. The Scottish Act as it stands, however, can act as a disincentive to local research which may be small pilot projects that would lead to a more established research programme because of the fact that that then has to go to the national ethics committee for approval. It can discourage the low level of research and we need to be careful about that.
Q74 Laura Moffatt: Gentlemen, I need to return to the issue of benefit. You heard the question that I asked previous witnesses but of course I cannot ask that because you have not got withdrawal of treatment as part of the Scottish Act so therefore my question is going to change. Firstly, as practitioners are you glad about that? Are you glad that you do not have to include that decision-making as part of the Act? Secondly, I was so pleased to hear you say, Dr Lyons, that you should not really concentrate on the high profile cases because as a nurse for 25 years I know very many more decisions are having to be made that are not high profile and it is going on from day-to-day and it is quite difficult. Could you first of all tell me if there are any advantages to decoupling that issue? When you see the weight of evidence that has come to the Committee on that particular subject then I am beginning to see it too, to be honest.
Dr Lyons: I absolutely understand the anxieties people have about this whole question of withdrawing or withholding life saving treatment. I have a couple of things to say about that. First of all, can I be clear with the Committee that in the eyes of the Ethical Department of the British Medical Association there is no difference legally and ethically between withdrawing treatment and withholding treatment in the first place. I know it might look different and it feels different when you are doing it but the end result in either case is the person is going to die.
Q75 Laura Moffatt: Is that a benefit though?
Dr Lyons: Mr Ward said - and I completely agree with him - is it the intervention you have to decide on, not the not intervention, okay, so if I am in a situation where a person has lost the ability to eat and drink and lost the ability to swallow, has an advanced illness, an advanced degree of dementia, I have to make a decision as to whether it is going to benefit that person to intervene. That is the decision I have to make. I do not decide is it going to benefit them if I do not intervene, I say is it going to benefit them if I intervene. That is the test. That is where it goes back to the evidence because the evidence base in the population that I deal with is that if you do try and intervene a) it does not benefit and b) using an artificial feeding apparatus causes distress to the person, it is uncomfortable for them, and does not prolong that person's life. That is the evidence and that is what I mean by evidence of benefit.
Q76 Laura Moffatt: I hear absolutely what you say but you have almost persuaded me that "best interest" is the best wording here then.
Dr Lyons: I disagree. I think the evidence-based test of benefit is the best way to look at it.
Professor McMillan: Could I just raise a little bit of a flag for the high profile cases not because they are high profile but because the category of case that we are talking about here. In the Law Hospital case and Tony Bland case we are talking about people with severe physical incapacity and in those cases extremely severe mental incapacity. I would like to emphasise some of the points Mr Ward made. There is an important issue in terms of having robust assessment where there is any doubt whatsoever that the person is unable to communicate and where essentially you may have somebody who is locked in but who has been adequately assessed, and it may be felt that the decision is that feeding intervention should be withdrawn. I want to raise a little flag for those cases where there is a communication difficulty and serious physical handicap.
Q77 Baroness Fookes: I cannot myself see the difference between "best interest" and "benefit" taken at face value. Is the problem for you that "benefit" is a more modern term in relation to the legislation and "best interest" carries, what shall we say, a history, it carries baggage?
Professor McMillan: Can I make a comment here. I liked Mr Ward's hierarchy where he had best interest at the bottom because the other steps you go through are evidence based and I think that is the crucial element. You are looking at evidence and by the time you get to best interest you are more concerned with opinion.
Q78 Baroness Fookes: But why should you not look at evidence or tie it in with best interest?
Professor McMillan: It may be an issue to do with semantics which I think somebody raised earlier on, but with benefit you are looking at something which you assume is going to improve the lot of the person and there is specific evidence for that.
Q79 Baroness McIntosh of Hudnall: Can I just pin this one down because this is a really tricky bit of ethical unpacking that we are doing here. I think, Dr Lyons, you said earlier on that there would be no doctor in this country - and I am not quoting you but this is what I heard - who would see being dead as a benefit or dying as a benefit.
Dr Lyons: I think you are misquoting me.
Q80 Baroness McIntosh of Hudnall: If I am misquoting you then please reply.
Dr Lyons: I said there was no doctor who would act to end somebody's life.
Q81 Baroness McIntosh of Hudnall: Act to end somebody's life, that is fine, because that sets the context for what I wanted to ask you. It appears to me that underlying a lot of what you are saying about this particular issue is a general principle, not one of these general principles, a general principle that being alive is on the whole better than being dead. I am really not being flippant, I think that does seem to me to be an underpinning principle to what are you saying, which makes it difficult to understand where issues about best interests or benefit, however you want to describe it, fit into the language of decision-making if the general principle is indeed that being alive is better than being dead because that would lead to an assumption that anything - I know this is not how doctors and medical people proceed, I know the complexity of the argument - that prolonged life was preferable to something that did not. I think we need to understand what the governing principles are here.
Professor McMillan: Is there not an issue of futility treatment and because the treatment is futile by definition of futility it is not going to accord benefit.
Dr Lyons: I can give you a quotation, I think I am quoting correctly: "To attempt to preserve a patients's life at all costs may not be fully respectful of the patient. You must approach end of life decisions with a healthy realism". That was Pope John Paul II.
Q82 Baroness McIntosh of Hudnall: As it happens that is a view that I share. What I am trying to understand is the tension that seems to me to be bedevilling the question of interest and benefit round the issue of withdrawal of treatment between the benefit of being alive and the benefit of not being alive, and that in the end is what it boils down to. I think that what you have just said clearly indicates that there are circumstances in which not being alive is preferable to being alive.
Dr Lyons: Can I put it another way, am I intervening to prolong somebody's life or am I intervening to prolong somebody's death. Am I prolonging the process of dying? Am I helping that person? I have to make that decision day in and day out with people with advanced dementia. I follow very clear principles laid down by the British Medical Association in how I do that and I consult widely over that. That does not involve the Mental Incapacity Act although the general principles of the Act do guide my decision-making. My decision-making would have been within those principles.
Baroness McIntosh of Hudnall: It might be worth our while to consider what extent it is necessary to make explicit what you just said because the difference between prolonging somebody's life and somebody's death is very, very critical but it does not appear anywhere.
Q83 Lord Rix: Would that not be for guidelines rather than the Bill?
Dr Lyons: May I make a recommendation, my recommendation is that you do not write it explicitly into the Act, that is not what the Act is about. What is happening with this discussion is this discussion has been hijacked by that issue, the way that we almost got hijacked in the Scottish Act with that issue, so we left it out and that allowed us to concentrate on using the Act for people's benefit and leaving these difficult decisions to good practice guidelines.
Q84 Chairman: Did you have a draft or did your Parliament go straight to the Bill? Did you have a draft Bill and then have consultation or did you go straight to the Bill?
Dr Lyons: There was actually a lot of consultation before the draft Bill in the first place.
Q85 Chairman: So it was a draft Bill, was it?
Dr Lyons: Yes, but there was a draft Bill that came out of the Scottish Law Commission's original report and the document Making the Right Moves which it was eventually called.
Q86 Chairman: Were the draft Codes of Practice circulated widely for consultation?
Dr Lyons: Yes, and we all commented on them, ripped them to bits and they went away and thought again. I would say that the Code of Practice for medical treatment in particular in the Scottish Act has its problems. We have difficulty - and there are one or two questions in here about it - because the definition of "medical treatment" under the Scottish Act is, in my personal opinion, too broad. It is defined as "any health care procedure designed to promote or safeguard the physical or mental health of the adult", which is far too broad and it is not what the Act should be concentrating on for medical treatment which is potentially contentious longer term treatment and the acute treatments that would ordinarily require a person's consent, so I think there is a judgment to be made there. The other big difficulty with medical treatment that this Bill has is it does not close the Bonewood gap. I am sure you are familiar with the Bonewood case. This Act excludes those covered by Part IV of the Mental Health Act. That excludes mental disorders beyond three months so if somebody is incapable of giving consent to this order you could not give them treatment for that if this Bill became an Act.
Q87 Chairman: This is the draft Bill?
Dr Lyons: You would have to use the Mental Health Act so all these people would be subject to the Mental Health Act and they would all need a second opinion from the Mental Health Act Commission and you would gum the entire system up and it would not work. We were close to doing that in Scotland before we drew the Scottish Executive's attention to that so I think it is only fair to draw that to your attention as well.
Dr Bowden: I think a related point is about assessment of capacity generally across the Act. We need to look at the appropriate level and intensity of assessment of capacity really on a principle of proportionality. For minor or relatively insignificant decisions I think you are perhaps moving to the general authority to treat, and general authority is potentially there. Perhaps we have gone too far in requiring certification of Part 5 under the Scottish Act but as a psychologist I would say that where it comes to complex decision making it is crucial that a psychological opinion is coming in there in contentious and difficult cases and indeed also a speech and language therapy opinion because of the particular communication issues that can come in, and I think guidance looking at that proportionality of assessment and using the appropriate specialists to carry out these assessments and not placing that on general medical practitioners or indeed under the general authority (Jean next door) is very important.
Q88 Baroness Fookes: As you obviously attach great importance to the codes, would it be useful for us to have a copy of these codes perhaps with a critique where you feel that they may fall short or could be improved?
Dr Lyons: The Codes of Practice are certainly available on the web site on the Scottish Act. On the critique especially on the medical Code of Practice there is a consultation process at the moment and the responses to that will be analysed by the Central Research Unit. I am doing some research on the use of Part 5 with the University of Stirling. I think it is very important that when those reports are analysed and that research is available then we do our best to make it available to this Committee.
Q89 Baroness Fookes: And the timescale?
Dr Lyons: For the analysis of the responses it should be pretty soon.
Q90 Baroness Fookes: In time for us?
Dr Lyons: What is your timescale?
Q91 Chairman: We have to finish all our deliberations by the end of November.
Dr Lyons: I would be confident that the responses will be analysed before then.
Mr Ramm: I think there are some similar discussions amongst clinical psychologists about their views in relation to the Act as well. You have to bear in mind that even for Scotland the ramifications and implications of the legislation are still only just being worked through, so it is still very new to us.
Chairman: Sure. Thank you very much indeed. You have had the questions, we have not reached them all. If there are any questions there that you would particularly like to answer in writing that would be very helpful to us. I apologise again for all the disturbances, which were due to the House of Lords mainly. Thank you very much, it has been very helpful.