JOINT COMMITTEE GIVE CAUTIOUS WELCOME TO DRAFT MENTAL INCAPACITY BILL
An all-party Committee of MPs and Peers set up to examine and report on the draft Mental Incapacity Bill has given it a cautious welcome.
The draft Bill aims to ensure that, wherever possible, those who lack capacity are helped to make decisions for themselves, and that their right to do so is respected. It also aims to set out clear guidelines for anyone making decisions for people who lack capacity. The draft Bill draws on preparatory work and consultation stretching back to 1989. Much of it is based on a Law Commission report published in 1995.
The Chairman of the Joint Committee, Lord Carter, said:
"This Bill is important and long overdue. It's about respecting the rights of people who lack capacity: some witnesses told us they were fed up with being bossed about and treated like second-class citizens."
" At the same time, it's about protecting the vulnerable. We've heard evidence that up to 20% of financial transactions under the present Enduring Powers of Attorney are tainted by abuse. Other witnesses had fears about what might happen when incapacitated loved ones go into hospital or a care home."
"It's also about setting clear rules and guidelines for doctors, lawyers, banks, social workers, carers and families - anyone who may have to help in making decisions for those who cannot make them for themselves."
"We support the basic aims of this Bill, although more work needs to be done to get it right. That work must be done thoroughly and done soon - those for whom the Bill is intended have waited long enough."
"The Bill is a big step in the right direction, but it can only go so far. In launching the Bill the Government should make a sustained effort to change public attitudes towards those lacking capacity."
The Bill's overall approach is that decisions must be made in the best interests of the person concerned. Everyone must be assumed to have the capacity to make decisions unless it is proved otherwise, and decisions must be judged by balancing the individual's mental state at the time with what is involved in the decision. A balance has to be struck between enabling decisions to be made and protecting those who are vulnerable. The Committee supported this approach but felt that some of the concepts and guidelines in the draft Bill were not clear enough and that more safeguards were needed.
The Bill introduces the concept of "general authority", which is intended to give permission for everyday and emergency decisions to be made on the spot when needed.
Lord Carter said: "Unfortunately, we find that the concept is widely misunderstood. For some the term "authority" sounds too much like licensed paternalism."
The committee concluded that the limitations on this potentially useful facility were unclear and insufficient: they must be more clearly defined and better safeguards provided.
The Committee recommends that the new Lasting Powers of Attorney, which this Bill will introduce, should have much tougher safeguards to stamp out financial abuse. New rules and proper training will be needed for those who carry out these powers on behalf of people lacking capacity.
The Committee supports the draft Bill's plans to permit advance decisions to be made to refuse medical treatment.
Lord Carter said:
"We know that many people have moral objections to this. But individuals already have the legal right to refuse treatment when they are capable of making decisions. Why shouldn't they have the same legal right to make their wishes known in case they become incapable?"
The Committee recommends that advance decisions should be made in writing and independently witnessed by people who have no financial interest in the estate of the person concerned. The only exception should be for medical treatment, where the advance decision should be recorded by the doctor concerned on the patient's notes. The consequences of making advanced decisions ought to be properly explained to those making them, and they should be encouraged to review their decisions to keep pace with changing methods of treatment.
Euthanasia by the back door
The Committee received a huge number of representations from those who claim that this Bill will allow euthanasia by the back door. However, the Committee are satisfied that nothing in the draft Bill will permit euthanasia.
The Committee recommends that extra assurance should be written into the Bill to make that clear. The Bill should also give guidance on standards of care for incapacitated patients and on the problems posed by artificial nutrition and hydration.
Codes of Practice
The Bill deals with a wide, complex and sensitive field of human activity, including temporary, fluctuating and permanent incapacity and decisions that may be life changing as well as day-to-day ones. This cannot be covered adequately by the Bill alone. Its success will depend on the Codes of Practice that will have to be developed for medical and legal professionals, people providing financial services, social services and professional care providers, as well as for the partners, family members and non-professional helpers of those lacking capacity.
The Committee recommends that these Codes should be comprehensive and readily understandable. They must be produced in draft before Parliament deals with the Bill itself.
The Committee recommends that the Bill should enable strictly-controlled medical research to be carried out on those lacking the capacity to consent to it. Properly-regulated research involving people who may lack capacity could be the only way of finding cures for incapacitating disorders like Alzheimer's.
The report recognises that this issue is controversial. It sets out very stringent proposals for controlling this research through independent medical ethics committees, including lay members, based on principles approved by the World Medical Association and the European Clinical Trials Directive. The research must have the potential to benefit people with that particular problem directly, even if it cannot benefit the patients themselves. The ethics committees will also have to be satisfied that the research proposed could not have been done with the involvement of those with capacity.
The Committee recommends that the role of independent advocacy services should have more official recognition and that their availability and standards should be improved.
Lord Carter said: "Independent advocacy services are vital in helping people with capacity problems to make decisions and assert their rights. They can offer valuable additional safeguards against abuse and exploitation. They can help in resolving disputes. The status of independent advocates needs more official recognition and support."
The Committee is critical of the Government's failure to provide an adequate assessment of the likely resource impact of this Bill.
Lord Carter said: "We cannot understand why we could not have been given us more accurate figures, nor why so little consultation seem to have been done about the likely costs. This has left us completely unable to judge what the costs to the tax payer will be, which is highly unsatisfactory".
Both Houses of Parliament will need to examine the resource implications very thoroughly when the Bill is presented to them.
Access to Information
The Committee expressed surprise that the draft Bill does not cover the problem of giving those caring for people lacking capacity access to the information they may need to carry out their responsibilities effectively. This, too, is something that will need to be very carefully examined when the Bill does come before Parliament.
NOTES FOR EDITORS
1. The Joint Committee was appointed on 11 July 2003. They received over 1200 written submissions and took evidence from 61 witnesses, including Government Ministers.
2. The Members of the Committee are:
Lord Carter (Labour) Chairman
Baroness Barker (Liberal Democrat)
Baroness Fookes (Conservative)
Baroness Knight of Collingtree (Conservative)
Baroness McIntosh of Hudnall (Labour)
Lord Pearson of Rannoch (Conservative)
Lord Rix (Crossbencher)
Baroness Wilkins (Labour)
Mr John Bercow MP (Conservative, Buckingham)
Mrs Angela Browning MP (Conservative, Tiverton and Honiton)
Mr Paul Burstow MP (Liberal Democrat, Sutton and Cheam)
Jim Dowd MP (Labour, Lewisham West)
Stephen Hesford MP (Labour, Wirral West)
Mrs Joan Humble MP (Labour, Blackpool North and Fleetwood)
Huw Irranca-Davies MP (Labour, Ogmore)
Laura Moffatt MP (Labour, Crawley)
3. The Report is published by The Stationery Office (tel: 0845 702 3474).
4. The draft Bill was published by the Government on 27 June 2003 as CM 5859.
The Committee's report will be available in an easy-read version for those with learning difficulties from Francene Graham on 020-7219-8387 and on the Parliamentary website (www.parliament.uk/parliamentary_committees/jcmib.cfm).
For further information please contact Liz Parratt on 020-7219-1708.