BMA submission to the Joint Committee
on the Draft Mental Incapacity Bill
(1) The British Medical Association is a professional
association of doctors, representing the interests of all doctors
in the UK. The Association has in excess of 127,000 members (around
80% of UK practising doctors are members). The BMA is an independent
trade union and a scientific and educational body.
(2) The British Medical Association very much welcomes
the publication of the Draft Mental Incapacity Bill and believes
it to be a significant step forward in the care and treatment
of incapacitated adults. The Association would, however, wish
to draw attention to a number of issues, and these are set out
(3) The BMA is grateful for the opportunity to submit
"Best interests" or "benefit"
(4) How "best interests" are interpreted
in practice will be central to the success of the legislation.
No attempt, however, is made to define "best interests"
in the Bill. The equivalent Scottish Bill uses "benefit"
instead of "best interests" and it would be useful to
explore their respective advantages. It is possible, for example,
that "best interests" might preclude any possibility
of a treatment or intervention that does not harm, or risks only
minimal harm, to the incapacitated person but that could provide
a significant benefit to a third person. Presumably, any intervention
that the individual would have clearly wished to occur would be
considered to be in that person's wider interests, even if not
clinically beneficial. This might include, for example, genetic
testing to benefit other members of the family. If this cannot
easily and clearly be incorporated into the Bill, the BMA would
like to see a separate clause introduced in the Bill that would
enable, with appropriate safeguards, the possibility of interventions
of this kind.
Scope of power of attorneys
(5) According to the Bill, a lasting power of attorney
(LPA) does not extend to the refusal of consent for withdrawing
or withholding life prolonging medical treatment unless it is
specifically mentioned in the LPA. The BMA is concerned that this
might serve to create a presumption that unless it is specifically
rejected in the LPA, patients would always want whatever treatment
was available. The BMA is concerned that this implies that treatment
is almost always in the best interests of the patient. The BMA
considers, in contrast, that treatment should only be provided
where it is likely to provide a net benefit to the patient. If
this clause remains, it must be made clear that continuing invasive
treatment should not be given when it is not in the patient's
interests, even if the attorney has not been authorised to refuse
Scope of general authority
(6) The BMA has a number of concerns with the general
authority. These are listed them below:
- What are the limits of the general authority
in relation to medical treatment? Are there thresholds of severity
beyond which the general authority cannot extend, and if so, where
do they lie?
- Are there any limits to the general authority
in terms of necessary as opposed to optional treatments?
- How will conflicts between the LPA and the general
authority be managed? Also, how will conflicts between individuals
who both believe they are operating under the general authority
(7) Clear guidance will therefore be needed in the
Code of Practice as to the scope of the general authority, at
what point a decision by a proxy or the Court is required, and
whether the Bill applies to "necessary" as opposed to
elective treatments, even though the elective treatments might
benefit the patient.
Dispute resolution mechanisms
(8) How will disputes between attorneys and health
care workers and between separate individuals both of whom may
believe they are operating under the general authority be managed?
Although the Bill creates a provision for recourse to the Court
of Protection for rulings on single issues, the BMA would like
to see the Code of Practice containing detailed advice in relation
to mechanisms for the local management of disputes about the best
interests of the donor, particularly, for example, where the decisions
are not of the gravity of withdrawing life-prolonging treatment
but nevertheless raise best interests issues.
- The BMA welcomes both the inclusion of advance
refusals in the Bill, and the clarification, under section 25,
of doctors' non-liability where they act in good faith in accordance
with what they reasonably believe to be a valid advance directive,
or where they act in contradiction to an advance directive that
they did not know existed.
- The BMA would like to see mention in the code
of practice that unless a woman's advance refusal specifically
refers to refusal of life-prolonging treatment while pregnant,
it is extremely unlikely that the refusal will be deemed to be
- No mention is made of the relation between the
Incapacity Bill and mental health legislation in regard to advance
refusals. It is the BMA's understanding that, currently, advance
refusals are not applicable to treatment provided under mental
health legislation. The Association would not wish to see any
change in this position.
- The Association would like to see mentioned in
the Bill that an advance refusal or directive would not be valid
if it was produced under coercion.
- The BMA is concerned that some existing advance
directives may be deemed invalid if they do not meet the specific
requirements of the Bill. The Association would not want the Bill
to take away any existing common law mechanisms for making advance
- The BMA considers that people should not be able
to refuse, in advance, the provision of "basic care",
which, in the Association's view, includes the administration
of medicine, or the performance of any procedure which is solely
or primarily designed to provide comfort to the incapacitated
patient or alleviate that person's pain, symptoms or distress.
The Association would like to see this in the legislation or the
code of practice.
Codes of practice
(10) The Association would hope to be involved in
any consultation process where the code or codes of practice will
have an impact on the work of doctors or other health care workers.
(11) While the BMA considers that, as a matter of
general principle only competent adults should be considered as
live organ donors, and supports the view that proxies would not
be able to consent to live donation, the Association would wish
for scope to remain for truly exceptional cases to be considered
by the courts on an individual basis.
Power to call for reports.
(12) The Bill refers to Lord Chancellor's Medical
Visitors and the requirement for them to carry out medical examinations
of individuals who may lack capacity, and who may also be required
to inspect those individuals' medical records. What powers will
these Visitors have where individuals do not consent either to
examination, or to the release of their medical records? For example,
where it is believed that an individual may lack capacity and
a medical report is requested, will the Visitors be able to proceed
in the face of a refusal from the individual concerned? If not,
how will such a situation be managed? Is the post and role of
Medical Visitor a new post or are Medical Visitors already employed
by other statutory bodies?
Restrictions on the general authority - the use
(13) While the BMA fully endorses restricting the
use of force or other constraint to interventions solely directed
at promoting the best interests of patients, there may be some
unintended consequences of the Bill as drafted. Would leading
or guiding an incapacitated person by applying slight directional
pressure constitute a use of force and if so could it only be
justified in order to avert a risk of serious harm? Bournewood
highlighted uncertainty about the issue of whether compliant incapacitated
persons were in fact detained. What would actually constitute
a statutorily significant restriction of liberty and would it
always need a substantial threat of significant harm to justify