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Mental Capacity Bill
House again in Committee on Clause 3.
Earl Howe moved Amendment No. 7:
The noble Earl said: This is a probing amendment, because I do not wish to disturb the phraseology of the subsection, which seems to have a particular elegance.
My question relates to individuals with depression. One of the features of those who are afflicted with depression is that they do not view the world in a normal way. They do not experience emotions in the way that others do; their view of life is of something colourless; they are often preoccupied with intense feelings of self- denigration; and they lack hope. In so far as a depressed person is capable of taking decisions, the decision-making process is skewed by those features of their illness. They do not use or weigh information in a normal way.
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Obviously, there are degrees of depression. The most severe forms have obvious outward symptoms. Someone with very serious depression who has delusions and is unable to lead any sort of normal life might well be regarded as lacking in mental capacity. Yet, even those with less serious forms can reach a point where they feel suicidal. The more difficult question is whether and to what extent, for the purposes of the Bill, someone with a less extreme type of depression can be regarded as lacking capacity if, while depressed, they go on to make an advance decision. I do not want to anticipate our debates about advance decisions, but we have to ask fairly tough questions about the interaction between this subsection and the fourth principle in Clause 1, which says:
"A person is not to be treated as unable to make a decision merely because he makes an unwise decision."
The issue is when an unwise or irrational decision becomes an unbalanced one.
An advance decision might in some circumstances have a suicidal intention behind it where the person is in a depressed state. Sometimes that fact will be impossible to ascertain. For example, a doctor may believe from the evidence before him that an advance decision was not simply unwise but was also not taken by the person in a rational and balanced way because the person was depressed when he took it. I realise this is a hypothetical question, but it is an important one—are those sufficient grounds for the doctor to treat the advance decision as null and void for the purposes of the treatment that he proposes to administer? I beg to move.
Baroness Ashton of Upholland: I understand what the noble Earl, Lord Howe, seeks to do, and I recognise that the amendment is probing. We think that the wording we have used incorporates evaluation as well. It is important that part of that is being aware of the consequences of the decision. For example, someone who has an eating disorder may understand that they need to eat to stay alive, but they cannot weigh that and its consequences appropriately. Someone with depression may also be unable to assess and to weigh the information because of their condition.
It is our understanding that if someone were depressed that would be sufficient grounds for a clinician to consider whether an advance decision was valid at all, and indeed whether to treat. When we discuss the role of making the advance decision in writing as we have described—in terms of withdrawal and refusal of treatment and the role of witnesses in that—we might explore the issue further. We think that, in the weighing that we have described in the Bill, we have incorporated the fact that people have to think about the information and be able to draw conclusions from it. Clearly, somebody in a depressed state may not be able in a position to do that, in which case, for the purposes of the Bill, they would lack
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capacity. I hope that that addresses the point made by the noble Earl, and that he will withdraw the amendment.
Earl Howe: I am grateful for that reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Lord Carter moved Amendment No. 10:
"DUTY ON PUBLIC BODY TO ASSESS CAPACITY
(1) Where it appears to the relevant authority that a person "P" may lack capacity in relation to matters connected to—
(a) the assessment of P's needs for services which may be provided or arranged by the relevant authority ("assessment of needs"), or
(b) the provision of services to P which may be provided or arranged by the relevant authority ("service provision decision"),
no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed.
(2) For the purpose of subsections (1) and (3) a "relevant authority" means either—
(a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990 (c. 19) (assessment of needs for community care services),
(b) a local housing authority within the meaning of the Housing Act 1985 (c. 68), or
(c) a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust.
(3) The relevant authority must—
(a) make arrangements for P's capacity, in relation to the manner in question, to be assessed,
(b) notify P of the help available from, and assist (if P so requires) P in contacting, an independent advocate under the arrangements under section 34 (such help may include assisting P in communicating his views),
(c) consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means), and
(d) where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of—
(i) a donee of a lasting power of attorney granted by P,
(ii) a deputy appointed by the court,
(iii) an advance decision to refuse treatment (where treatment is being considered).
(4) In carrying out an assessment under subsection (3)(a) the relevant authority must take into account the views of—
(a) P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b),
(b) anyone named by P as someone to be consulted on the matter in question or on matters of that kind,
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(c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and
(d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.
(5) If in the course of carrying out an assessment of P under subsection (3)(a), the relevant authority or any person or persons identified in subsection (4) requests that an independent advocate be provided to assist with the assessment, in accordance with the role of an independent advocate as defined under section 34, the relevant authority must ensure that an independent advocate is provided."
The noble Lord said: With this amendment we move to the subject of the duty on a public body to assess capacity. As we know, there are tens of thousands of older people and people with disabilities who are subject to having their care and treatment needs assessed every year. That is besides the more than 300,000 older people in residential nursing homes and the like. A significant proportion of those people will have difficulties in making decisions. It is therefore essential in the assessment, planning and review of those services that public authorities pay as much attention as possible to ensuring that people's ability to make decisions and have a say is maximised.
The amendment would affect the local social services authority, the local housing authority or an NHS body. It will cover assessment for a person's needs through a range of health, social care and housing needs and the decisions on what services should be given to meet such needs.
If it appears to the authority that the person concerned may lack capacity, the amendment requires the authority to take specific action. It makes clear that the authority must have a system of assessment and of information, of advice on advocacy and on communication needs; and that it must also make the necessary inquiries to be satisfied that another person does not have the authority to make such decisions, or that the situation is not covered by the advance refusal of treatment. The amendment therefore makes clear that the relevant public authority must ensure that decisions are taken only on behalf of the person in relation to health, social care and housing services after these steps have been taken.
It is implicit in the Bill that the authority should carry out an assessment of the person's capacity and I accept that. If it appears that the person may not have capacity to make decisions in relation to his assessment, the amendment makes the policy which is implicit in the Bill explicit on the face of the Bill. I beg to move.
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