Committee Assistant to the Joint Committee on the
Draft Mental Incapacity Bill
House of Commons
29th August 2003
Dear Ms Graham
Consultation over the Draft Mental Incapacity
Bill, 2003 (Cm 5859)
The British Psychological Society
(BPS) is happy both to offer written evidence to the Joint Committee
scrutinising the Draft Mental Incapacity Bill, 2003 (Cm 5859)
and to comment on the process of consultation as detailed in the
Press Notice of 17th July 2003. Our comments on the
substance of the Draft Bill are enclosed.
In respect to the process of
consultation, the BPS strongly welcomes the open process of scrutiny
and particularly welcomes the opportunity to present written and
oral evidence to a Bill Scrutiny Committee. We strongly welcome
this development in the legislative process.
In respect to the particular
questions related to process posed in the Press Notice of 17th
July 2003, the BPS welcomes the consultation process preceding
the publication of the Draft Bill. As above, we believe that open
debate will strengthen the resulting legislation.
We have only two reservations
in respect to the process of consultation. First, we note as a
Society that the psychological contribution to this area is under-represented.
We feel that psychologists have a wealth of expertise emanating
from both research and clinical practice in the field of mental
health and incapacity that could be used to improve the legislation.
Second, the time scale from publication
of a Draft Bill to the requirement of written evidence and the
timetabling of oral evidence sessions has been tight. The BPS
welcomes the request for involvement and recognises the need to
pass legislation more rapidly given the pace of medical advancements.
The BPS, like other learned societies,
relies in such circumstances
on professional members who are employed full-time by the NHS
and Universities. Finding time at short notice for preparing written
evidence to a short timescale can be difficult, especially during
the summer months.
The BPS is a UK-wide body, and
we are strongly represented in Scotland, where our members have
been closely involved in the Adults with Incapacity (Scotland)
Act both during its drafting and now in its implementation. The
BPS believes that the Scottish legislation has many advantages
over the Draft Bill. We understand that the Joint Committee intends
to invite representation from our colleagues in Scotland. Such
compatibility across the UK is, we believe, particularly important
in the context of Human Rights legislation.
Please find enclosed our formal
submission of written evidence to the Joint Committee on the substance
of the Draft Bill. We would, of course, expect to expand on these
points in oral evidence.
If there is further material
that we can offer to support the Joint Committee, the Clerks or
the Department for Constitutional Affairs in this or other matters,
please do not hesitate to get in touch.
Dr Peter Kinderman
Consultant Clinical Psychologist
Reader in Clinical Psychology
On behalf of the British Psychological
Consultation to the Joint Committee on the
Draft Mental Incapacity Bill, 2003 (Cm 5859)
With over 36,000 members, the
British Psychological Society (BPS) is the representative body
for psychologists and psychology in the UK. Its Royal Charter
charges the Society with national responsibility for the development,
promotion and application of psychology for the public good.
The BPS welcomes the publication
of a Draft Mental Incapacity Bill. We strongly support the intention
to address the needs and rights of vulnerable adults and their
carers. However, the BPS believes that changes to the Draft Bill
The BPS acknowledges the request
to present both written and oral evidence to the Joint Committee
as recognition of the scientific knowledge base and practical
expertise of psychology. Chartered Psychologists with specialist
expertise of working with clinical populations are trained to
assess competence in decision-making ability. Our comments are
intended to advance two broad aims: to assist in the effective
implementation of the Bill, a Bill whose policy intentions we
support, and to encourage a coherent and psychologically informed
approach to mental health legislation.
We welcome the opportunity to
elaborate on all these points (necessarily brief here) in oral
evidence. We would particularly appreciate the opportunity to
elaborate on Items marked .
The BPS recognises that the Draft
Mental Incapacity Bill legitimises the allocation of decision
making authority to proxies following an assessment of the mental
capacity of the individual. This means that the expert assessment
of capacity is particularly important: serving as it does the
dual goals of protecting the autonomy of individuals who retain
capacity and protecting vulnerable people who do not.
The BPS welcomed the statement
of principle included in the Draft Mental Health Bill (Cm 5538,
Part 1 Section 1 subsection 3). We recommend the inclusion of
a similarly binding statement of principles in the Draft Mental
The BPS also supports the basic
principle of law that people who are able to make appropriate
decisions for themselves should be legally entitled to have these
decisions honoured. Conversely, we believe that legislation such
as the Mental Health Act and the Mental Incapacity Act should
apply only if people are not so able to make decisions for themselves.
We recognise that it is legitimate
to separate the provisions of the Draft Mental Incapacity Bill
from the provisions of the Draft Mental Health Bill. We recognise
that the Bills address different needs and that people may require
the provisions of the Bills under different circumstances. We
further recognise that the criteria for application of the provisions
of the Bills will be different.
Specifically, the BPS welcomes
the definition of capacity used in the Draft Mental Incapacity
Bill. In the context of the principles outlined above, the BPS
has recommended that the Draft Mental Health Bill includes a criterion
of 'impaired judgment' (a position shared by many other interested
parties). The BPS therefore believes that care must be taken
to ensure proper coherence between the two Bills, and that there
should be clarity about the boundaries and overlap between the
two pieces of legislation.
4. 'Functional approach'
The BPS recommends that the Bill
should make reference to the need for an operational definition
of incapacity to be developed within the Code of Practice. The
BPS supports the adoption of the "functional approach"
when determining capacity. This is consistent with current practice
based on the research evidence derived from scientific studies
of psychological functioning and has long been a recognised method
used by Chartered Psychologists working with clinical populations.
Such an approach ensures that
account can be taken of additional factors not necessarily arising
from organic impairment. The BPS notes that in the recent Masterman-Lister
case the role of psychological factors was highly relevant. These
include cognitive differences that may arise from educational
factors, the influence of general environmental circumstances,
as well as cultural, social, and personal beliefs and values that
may impact on decision-making competence and on the consequences
of decisions made.
In addition, specialist assessment
of cognitive functioning may be needed, for example where there
is communication difficulty because of physical or language impairment
or where there is or may be impairments of reasoning, attention
5. Process - assessment
and determination of incapacity
The BPS welcomes the introduction
of a structured approach to the management of issues relating
to incapacity. We recognise the need for legislation that incorporates
both General Powers and specific powers such as Lasting Powers
The BPS, however, believes that
the Bill as drafted lacks necessary specificity in the assessment
and determination of incapacity. We welcome the definition of
incapacity enshrined in the Draft Bill. At present, however, the
Draft Bill lacks a robust, transparent and practical system for
determining if, and when, the criteria for incapacity within the
terms of the Bill have been met.
The BPS believes that the Bill
would benefit from the introduction of a formal process of Registration.
We believe that this would better meet the identified aims of
protecting vulnerable people and their carers. It would also
be more consistent with the Scottish Incapacity Act.
To ensure adequate safeguards
and to promote the least restrictive approach, the BPS recommends
a hierarchy of decision-making authority, specified in a code
of practice. This will ensure that adequate account is taken of
potential fluctuations in decision-making capacity, as well as
reflect the diversity and complexity of decision-making ability
across the domains of health, welfare and finance.
a) General Authority
General Authority would allow
family, care staff and professionals to provide routine care;
taking account of the overall best interests of the individual,
and based upon current healthcare opinion arrived at in good faith.
This would allow family members, care staff, and other professionals
to make routine day-to-day decisions for an adult with impaired
decision-making capacity, for example, for a person with severe
dementia or severe learning disabilities, without having to be
concerned that they were acting illegally. In most cases this
would be uncontroversial and would address all routine care and
placement issues. In order to promote joint working among care
providers and other professionals, however, a formal care plan
should be compulsory.
If, however, a major decision
needed to be taken concerning the person's health, personal welfare,
or finances that went beyond routine care, if there was a significant
change in the individual's circumstances, or if there was a serious
or life threatening condition, the BPS recommends that the Draft
Mental Incapacity Bill introduce a system for formal Registration
of the patient with the Public Guardian.
b) Formal Registration
The BPS recommends that the Code
of Practice specify the circumstances in which a formal application
is required. These would, we recommend, include:
- need for treatment of a serious
or life threatening condition (e.g. refusal to receive insulin
medication in diabetes)
- cessation of such treatment
- unresolved conflicts regarding
the best interests of the individual
- 'do not resuscitate' orders
- the enactment of Lasting
Powers of Attorney
- or otherwise where there
is an additional or significant change in the circumstances of
Examples of this process might
An adult with learning disabilities
cared for successfully within a community setting using General
Powers inherits £500,000. It may then be appropriate to Register
the individual in order to ensure not only the protection of their
financial interests but also to safeguard the care staff from
allegations of improper conduct in relation to the substantial
An Adult with dementia might
be faced with serious and life-changing medical decisions. Registration
of that person with the Public Guardian would likewise protect
the carers from criticism in relation to such decisions.
Finally, a person may make a
Lasting Power of Attorney giving financial control of their estate
to a relative. It would be reasonable to Register the actual implementation
of such control with the Public Guardian to ensure that, as presumed,
the person involved indeed cannot legally retain financial decision-making
The process of Registration would
also be appropriate where there is uncertainty as to the exact
status of an individual, for example, where a person in the early
and confused stages of recovery from a brain injury who is having
difficulty understanding the treatment and rehabilitation options
available and is refusing what is being recommended. In many
cases it is clear whether or not the individual has retained capacity,
but where this in not obvious or is contested then an assessment
as part of the process of Registration would address this issue.
Consideration should, however, also be given to the process of
the lifting of Registration, in cases where capacity may fluctuate
or where an individual is likely to regain capacity
Care should also be taken to
ensure that, in line with the functional approach, capacity is
not seen as an all or none phenomenon. People may be unable to
make decisions about issues such as disposal of assets, but be
able to live independently for example. This means that the process
of assessment and Registration will need to incorporate single
assessments by single practitioners in some cases, but more complex
and multiple assessments in cases where the decision is complex
The BPS recommends that the formal
process of Registration designates a specific person (or persons)
as the carer(s) of the patient. The nature of the decisions requiring
the powers of the Incapacity Act - financial or practical arrangements
for instance - should be clearly specified. The Registered Practitioner
should, we recommend, also be given specific responsibilities
regularly to check the welfare of the individual and that the
carer has not taken actions that lie beyond the issues originally
6. Registered Practitioners
Registration of a person with
the Public Guardian as detailed above, should occur on the basis
of the written evidence of two Registered Practitioners. These
would be senior practitioners falling within a description specified
by the appropriate Minister in regulations.
Chartered Psychologists with
appropriate competencies, experience and seniority would clearly
be appropriate for such a role (especially for more complex and
sensitive issues). The BPS believes that to obtain reliable and
valid assessments there must be additional appropriate training
for all registered practitioners.
7. Advance decisions
The BPS supports the inclusion
of advance decisions in the Draft Bill. However we recognise
that these issues are highly complex.
The BPS remains concerned about
people whose capacity fluctuates or where decisions need to be
made during a period of slow recovery of capacity. Precipitate
and irrevocable decisions about incapacity may therefore be invalid.
Formal processes of Registration may address this issue if such
processes incorporate regular review, oversight and specificity
of planned actions or decisions.
Recent research indicates that
people who have previously expressed a desire to end their lives
in circumstances relevant to the use of the Incapacity Act are
later grateful that they remain alive. A simple 'balance of probabilities'
model for adjudications (Part 1 Section 3 subsection 2) may be
inappropriate. Consideration should be given to a weighted approach,
safeguarding against taking irrevocable decisions.
The BPS therefore recommends
that Registered Practitioners (referred to above) be called upon
to assist individuals in drawing up advance decisions. Chartered
Psychologists will have particular expertise here. The BPS also
recommends that the Draft Bill includes a clause making it a criminal
offence to ignore or destroy an advance decisions. Finally, we
recommend that the Draft Bill further clarifies the form of advance
decisions and the processes by which they are drawn up, recorded
8. Lord Chancellor's Visitors
The BPS believes that Lord Chancellor's
visitors have an important role to play. In particular, Visitors
may have an important role in the process of Registration if the
issues raised are particularly complex or involve controversial
interventions or disputes. Chartered Psychologists may have particular
expertise in this area, but are clearly not 'medical' practitioners
and as drafted, the Bill (Part 2 Section 49 subsection 2 paragraphs
a and b) would exclude Chartered Psychologists from the category
of Medical Visitor. The BPS recommends that a third category of
Lord Chancellor's Visitors be created, that of Expert Visitors,
in which psychology would be included along with other professions
including the law. We further propose that the power to call for
reports given to Medical Visitors (Part 2 Section 39) be extended
to such Expert Visitors.
9. 'Best Interests'
The BPS supports the 'best interests'
criterion but emphasises the need to enshrine in law (in line
with the Scottish Incapacity Act) the importance of the psychosocial
aspects of a person's life, in addition to medical matters. This
would entail assessing the social, psychological, cultural and
spiritual aspects of the decisions at issue. Individual beliefs,
values and social circumstances should also be taken into account.
Again, the precedent of the Masterman-Lister case is relevant
here, where the role of psychological factors was considered highly
The BPS recommends that the new
Commission for Mental Health (proposed in the Draft Mental Health
Bill) should be renamed, and should oversee the proper enactment
of both the Incapacity and Mental Health legislation.
The BPS broadly welcomes the
definitions and processes in the Adults with Incapacity (Scotland)
Act. Our colleagues in Scotland have considerable experience in
that respect, which will prove useful in respect to the present
12. Financial considerations
The proposals in the Draft Bill,
and those recommended by the BPS, will require additional resources
for initial and ongoing training in assessment, intervention and
monitored practice. The objectives of the Draft Bill will be best
met if public funding is made available for remuneration for practitioners
and Legal Aid for the person without capacity, or their representative.
Fees guidance will be required, as will guidance on the length
of time needed for proper assessment.
13. Additional concerns
The BPS believes that further
consideration should be given to a number of further issues:
The BPS remains concerned that
the definition of incapacity in Section 2 of the Draft Bill does
not fully recognise those people who have communication or memory
problems but who function well with appropriate support aids.
This may necessitate proper assessment (including clinical neuropsychological
assessment) and the use of memory and communication aids and/or
interpreters for those who appear to have difficulties in making
decisions but in fact are capable given the right level of assistance.
The BPS recommends that Section 2 subsection 3 of the Draft Bill
be strengthened in this respect.
The BPS is concerned by the term
"any form of care" in Part 1 Section 6 subsection 1.
This appears imprecise. The BPS recommends that this be reworded
as "It is lawful for a person when caring for an individual".
It may be unnecessary, here, to introduce the reference of "P",
when the pronoun "he" is used previously.
The BPS notes a contradiction
in drafting between Part 1 Section 17( c) and Part 1 Section 20
The BPS remains concerned about
the impact on individual cases of the excluded groups of decision
making (Part 1 Section 26).
The BPS is concerned over the
specific relationship proposed between the Draft Mental Incapacity
Bill and the Mental Health Act 1983 (Part 1 Section 27).
The Draft Bill should include
a system for informal disputes resolution.