October 2004
House of Commons Committee
Stage
This briefing is written on behalf
of the Royal College of Psychiatrists to members of the Standing
Committee suggesting amendments that the Committee may wish to
consider, as well as making further comments on specific aspects
of the Mental Capacity Bill, particularly in response to the second
reading in the House.
We would first like to confirm the
continuing support of the College for this legislation and hope
that, with minor amendments, it will become law. We commend the
Government for placing the key principles at the beginning of
the Bill and for making this an empowering rather than restricting
piece of legislation. The problems that can occur in the absence
of statute were well illustrated by the case of L vs Bournewood
NHS Trust. We welcome the fact that the European Court has now
ruled on this particular case and we have considered the Court's
ruling when making the recommendations below. We have primarily
limited our comments to the implications of the Bournewood judgement
and to issues relating to research.
First, however, we note the continuing
concerns expressed by some Members of Parliament about LPAs and
advanced decisions to refuse treatment. The College's views are
clear and similar to those put forward by the BMA. We would like
to stress that, in the context of both LPAs and advanced decisions
to refuse treatment, the Bill does not create new clinical problems
but rather provides a framework for resolving dilemmas that have
always been present. How these dilemmas are handled has and remains
subject only to evolving common law, and for this reason there
is no ready means of challenge, other than by judicial review,
and no established framework that sets out the standards by which
Parliament have a right to expect doctors and others to work to,
and to be judged by. The Bill has broadly been welcomed by the
majority of organisations representing those who are likely to
be affected by incapacity and professional organisations who work
with this group of people.
This Bill is empowering in that it
allows people, whilst fully capable, to express their own view
as to future care if they were to become incapacitated, either
directly through advanced directives, or through others who have
been chosen by the person him/herself. A person making a LPA can
choose not only whether or not to authorise someone to make decisions
on his/her behalf, but also the extent of the decisions the authorised
person can make. We wish to support the thorough safeguards that
are present in the Bill for those that make such an advanced decision
or make a LPA. There are likely to be those who wish to leave
such decisions to the doctor to act in his/her best interest if
he/she becomes incapacitated, without influencing this process.
Others prefer the thought that they can plan for their future.
As noted by the scrutiny committee
there is no authority to stop fluid and food being offered, and
basic care and comfort being provided. The College recognises
there has been considerable discussion as to whether or not artificial
nutrition and hydration (such as by intravenous drip or naso-gastric
tube) should count as medical treatment or as food and drink.
We do not wish to express a view. Our concern, however, is that
the real strengths of the Bill, such as the enabling principles
and respect for autonomy, enhanced with additional safeguards
and means of appeal, should not be lost.
Specifically from the perspective of
psychiatry we ask that the Standing Committee consider the following
two issues:
Bournewood
We are of the opinion that the rights
of incapacitated people to second opinions and to accessible appeal
mechanisms are crucially important. The European Court ruled in
Mr L's favour arguing that he was actually detained and that there
was no clear process to be followed in relation to his admission
to hospital, nor clarity over the purpose of the admission, nor
a means for he or his carers to appeal against his admission.
The College has argued that a Mental Capacity Act, rather than
a Mental Health Act, provides the most appropriate means to fill
this gap in English and Welsh law for two main reasons. First,
a Mental Capacity Act, if passed, will apply to the full range
of situations including the treatment of physical as well as mental
disorder. The Mental Health Act is only concerned with mental
disorder. Secondly, the Mental Health Act, 1983 is only concerned
with treatment of mental disorder in hospital, not in the community.
The need for safeguards for people who lack capacity applies to
a range of situations, both in and out of hospital. However, the
problem with the Mental Capacity Bill, as it stands at present,
is that it does not have sufficient safeguards (such as rights
to second opinions and a clearly established system of appeal
to Tribunals).
We acknowledge the sound intentions
of the Government with the introduction of independent consultees'
in Section 34 but believe that this confuses two different, but
related, issues: a) the need for expert professional second opinions
and; b) the role of advocacy. For the vast majority of people
lacking capacity, decisions are now made under common law in their
best interests. This will continue under the Mental Capacity legislation
under Section 5, 'Acts in connection with care and treatment'.
Guidance in the Mental Capacity Bill and the Code of Practice
on best interest will enhance this process and ensure a voice
for the incapacitated person, as well as for families and other
carers. With the enhanced Court of Protection this framework provides
safeguards that are less stringent than the Mental Health Act
but sufficient for the majority of situations.
The problem is to be able to define
those situations where additional safeguards are needed, similar
to those in the Mental Health Act. In our view the European Court
judgement on Bournewood and the example of the Mental Health Act
provides some guidance. The former was concerned with detention
and the need for a readily accessible process of appeal, the latter
sets out specific situations where second medical opinions are
required. A particular problem for those who would be covered
by the Mental Capacity Act if in force is that by definition they
are unlikely to have the ability to appeal themselves because
of their incapacity. Thus, a robust appeal mechanism, which triggers
second opinions or appeals to the Court of Protection, is particularly
important.
In earlier evidence to the pre-legislative
scrutiny committee and the Department of Constitutional Affairs
we proposed that statutory second opinions should be required
under specific circumstances, and we supported the scrutiny committee's
view that there should be a stronger role for advocacy. We have
refined these earlier views further in the light of the Bournewood
judgement. We propose significant re-writing of Clauses 34 to
36. What we have suggested is an outline of some changes and we
would be pleased to be involved further in refining these suggestions,
if this was considered appropriate. We appreciate that additional
expertise is required to fully refine what we have suggested as
we are not experts in drafting law. What we have suggested is
therefore only an approximation of what might be appropriate.
The specific suggestions are as follows:
Clause 35: Duty to seek advice in
connection with serious medical treatment
(1) This section applies if an NHS
or private health provider-
a. is proposing to provide serious
medical treatment for a person ("P') who lacks capacity to
consent to treatment, and
b. there is significant difficulty
in determining 'best interest' due to the following:
A difference of views amongst relevant
interested parties;
ii. There
is a significant possibility that the adverse effects of treatment
may outweigh the benefits;
iii. Where
the use of potentially life sustaining treatment and its impact
on the person's quality of life is difficult to determine and
subject to dispute, or
a. the treatment to be given is outside
of clinical guidelines; or
b. specific treatments, as set out
in regulation, are proposed (an example would be ECT when not
covered by mental health legislation)
(2) Before the treatment is provided
the NHS body or private health provider must seek a second expert
opinion with respect to whether the treatment proposed is in the
best interests of P and the least restrictive option;
(3) Certain treatments set out in regulation
may only be undertaken with the authorisation of the Court of
Protection (this would include sterilization)
Clause 36: Duty of NHS body, private
health provider or local authority to make available independent
support to P
(1) If any of the conditions set out
in the sub-sections below apply the NHS or private health provider
or local authority must make such arrangements, as it considers
reasonable, to enable persons (advocates or independent consultees)
to be available to represent the past and present wishes of P,
as far as they are possible to ascertain.
others would be judged by. This is
a considerable strengthening of safeguards from the present confused
position.
Whilst research can be undertaken to
provide knowledge of causes or treatment of, or care of the person
it does not refer to complications associated with a particular
incapacitating disorder - for example pressure sores affecting
those with advanced Alzheimer's disease. We would suggest that
31(4) (b) might read:
Be intended to provide knowledge of
the causes or associated complications of, or treatment
of, or of the care of persons affected by, the same or similar
conditions.
The above are complex issues and we
would be very willing to help in any way that might be seen to
be appropriate.
Prof. Tony Holland, Royal College of
Psychiatrists
