Comments on the Draft Mental Incapacity Bill - Summary

• The Royal College of Psychiatrists is the leading medical authority on mental health in the United Kingdom and the Republic of Ireland and is the professional and educational organisation for doctors specialising in psychiatry.
• The principles which underpin the Mental Health Bill should be similar to those which underpin the Mental Incapacity Bill. A person’s decision-making ability is key to both Bills.
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• We welcome the respect for self-determination which guides this legislation and that ‘capacity’ is decision-specific and should be assessed on the basis of a person’s ability to make a specific decision at a particular point in time.
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• The concept of the ‘General Authority’ is to bring into statute common law. However further guidance is necessary as to its scope. Whilst Clause 26 gives some exclusions it does not state the limitations with respect to health care e.g. sterilization or termination of pregnancy?
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• Advance decisions to refuse treatment may cause individuals unintended distress, harm and prolonged suffering. There should be a duty on professionals to try and ensure that an advance decision is not leading to unintended harm.
• Patients should be given the right, which must be taken into account, to express positive wishes about how they wish to be treated. Such wishes cannot be binding upon the health professional. Attorneys or Court appointed Deputies should not have the authority to require a health professional to provide any particular specified treatment, as opposed to the power to refuse consent.
• The donee should be legally responsible for acting properly in the best interests of the patient. “Fundamental healthcare” should not require specific authority. Nor should general medical examination and continuation of long-term treatments to which the patient consented whilst still capable.
• The relationship between the Mental Health Act 1983 and the Mental Incapacity Act will need further clarification. The meaning of Clause 27 lacks clarity. It would be inordinately restrictive and inappropriate if it meant that all incapable people requiring medical drug treatment for mental disorder would need to be detained under the MHA regardless of the circumstances. The majority of treatments for mental disorder should, if “reasonable” and “necessary” be possible under the “General Authority” of the Bill.
• Many people need medication for physical ill health problems. Sometimes cognitive impairment leads to them resisting medication for their physical ill health. A legal mechanism is essential to enable such necessary medication to be given compulsorily when it is "refused" in these circumstances.
• Clause 27 might be replaced with a Clause on treatments requiring specific regulation. A list of interventions not covered by the ‘general authority’ might be broader than that which could not be authorised by a donee. A person who has specifically given authority for another person to make health care decisions for them would surely expect the donee’s consent to carry almost as much weight as their own.
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• The means by which specified medical treatments will be authorised will depend on the nature of the intervention. E.g. sterilization requiring the authority of the Court. Specified treatments for mental disorder could be dealt with by requiring use of the current, or future Mental Health Act. The College’s preferred option would be that the ‘second opinion’ process could mirror that used in the MHA (current and future) using the same system and personnel.
• Consideration could be given to expanding the ‘second opinion’ system to include physicians, surgeons and other medical specialists to enable statutory ‘second opinions’ to be required and authorised for a range of difficult or controversial treatments.
• The Bill omits the issue of research involving people who lack the capacity to consent. This is an ethically difficult area.
• Registration of a Lasting Power of Attorney for loss of capacity by the donor in only one area may lead to the Attorney being given wide powers over many areas.
• The present formulation of ‘best interest’ would permit families to insist that their older relative must “go into a Home” in their “best interests” when the older person does not wish it and their difficulties managing at home can be readily overcome by sufficient support.
• Clear guidance should given as to when the Incapacity Act or Mental Health Act should be used. People should not readily be subject to both Acts.
• Guidance is required, perhaps in the Code of Practice, in relation to the practice of giving ‘covert’ medication.
• The Mental Health Act Commission or its successor body might be given a monitoring role.