With the leave of the House, I would like to make a statement on Mental incapacity.
In my answer to the Noble Lord, Lord Peston, on 28 October, I indicated that it was the Government’s intention to issue a Consultation Paper on the subject of Mental incapacity. I am pleased to announce the publication of a Green Paper today.
It concerns the law in England and Wales. It examines a wide range of issues concerning the legal rights of people who are unable to make decisions for themselves, or who cannot communicate their decisions, as the result of disease, disability, or injury.
As it currently stands, the law affords little protection either to mentally incapacitated adults, or to those who care for them. The law is confusing and fragmented. Many carers in particular are expected to make decisions on behalf of incapacitated adults without a clear idea as to the legal authority for those decisions. Everybody will know of a friend or relative whose lives are affected by the unsatisfactory state of the current law. Let me provide just three examples: the first is a young man with a learning disability who has reached the age of 18, and wants to be able to make some decisions for himself, such as what clothes to wear, or where to live. A second example might be a young woman, formally a high-flying banker until a severe car crash caused brain damage rendering her incapable of taking all but the simplest decisions about her life, health or welfare. A third example may be an elderly woman who is now suffering from dementia. She is in a home, and currently there are concerns about how her finances are protected. The present law does not provide sufficient guidance or safeguards for each of the people I have mentioned, nor for those who care for them. The Green Paper invites views on the need for a framework for decision- making on behalf of people such as these who lack Mental incapacity.
I must make clear at the outset that the Paper does not seek views on euthanasia. Euthanasia is a deliberate intervention undertaken with the express intention of ending a life, at an individual’s own request or for a merciful motive. The Government is absolutely opposed to euthanasia in any form. The Government fully supports the view of the House of Lords Select Committee on Medical Ethics in its Report of February 1994 that euthanasia is unacceptable and cannot be sanctioned in any circumstances. Euthanasia is illegal now and will remain illegal. So let us not be side-tracked by this debate.
The current law lacks coherence because it has developed piecemeal. It is unsystematic and full of glaring gaps. It has many areas of uncertainty, and fails to offer adequate protection either for mentally incapacitated adults or for the people who look after them. The scale of this problem must not be underestimated. The range of people who are let down by the current law is considerable, and includes adults with learning disabilities; victims of accidents, such as road traffic accident victims who develop brain damage; those who lose capacity as a result of a stroke; and those who lose Mental incapacity later in life (for example those who suffer from dementia).
The Government owes two debts. First, to the Law Commission. Its work in this area culminated in the publication of its Report, Mental incapacity, in 1995. The Paper published today is based closely on the wide-ranging and coherent set of recommendations contained in the Law Commission’s final Report. The Government’s second debt is to the House of Lords Select Committee on Medical Ethics, chaired by the noble Lord, Lord Walton.
I recognise that many of the issues raised in our Green Paper are sensitive and attract strong ethical views. This is a Green Paper that seeks the broadest range of responses before policy can be settled.
With the exception of our absolute opposition to euthanasia, the Government has taken no fixed or final views on any of these questions.
The areas covered by the Green Paper include definitions of incapacity and of the best interests of an incapacitated person. The Paper also considers the need for a more informal framework for those making day-to-day decisions on behalf of an incapacitated person. The Paper looks at the possibilities open to someone who is able to make arrangements for a time when Mental incapacity may be lost. It examines the law relating to the making of advance statements and proposals for a new form of power of attorney that would cover health-care and personal welfare issues as well as financial issues. The independent supervision of medical and research procedures is also considered, as is the possibility of increased protection under public law for people with a Mental incapacity and any others at risk. Finally, the Paper looks at a possible judicial and administrative framework to supervise and regulate all these arrangements.
The first set of issues examined in the Green Paper are the key principles which underpin the Law Commission’s recommendations. The first of these is the need to replace the variety of different tests of capacity with a single, straightforward statutory definition. Such a definition would introduce certainty and clarity. The proposed test of capacity would be focused in each particular case on the decision which has to be taken and on the ability of the person concerned to understand the nature of the decision required and its implications. This would avoid unnecessary intrusion into an individual’s personal affairs, and would enable him or her to have as much involvement as possible in the decision-making process. It would, for example, allow a person to continue to make everyday decisions - such as how their finances should be organised - including what presents to buy for Christmas - , even if such a person was deemed incapable of making a decision about, for example, whether a particular form of medical treatment was appropriate.
The second central principle is that decisions on behalf of people under an incapacity should be made in their best interests. In determining whether a decision is in a person’s best interests, the decision-maker should take account of a number of factors. These include the ascertainable past and present wishes of the person concerned; the views of others whom it is appropriate and practical to consult; and whether the purpose for which the decision is required can be achieved as effectively in a way that is less restrictive of the individual’s freedom of action. Decisions taken on behalf of a person lacking capacity would therefore require a careful focused consideration of that person as an individual.
The Green Paper seeks views on the practical application of these criteria. For example, there may be differences of opinion between those who are to be consulted and conflicts of interest may arise. It may be, for example, that two close relatives differ about where a person should be looked after - a spouse might wish to continue to care for the patient at home, while a son or daughter might favour nursing home care.
The Law Commission also proposed that a legal framework be established to govern the many informal day-to-day decisions that are made by carers, family members or treatment providers on behalf of those under an incapacity. This legal framework would include a general authority for decisions to be taken on behalf of an incapacitated adult, provided those decisions are reasonable and in the person’s best interests. The Government accepts these proposals in principle, but remains concerned that any system of this kind should have adequate safeguards built in to ensure that incapacitated people and their assets are protected against abuse. The Green Paper therefore seeks views on the additional safeguards that would be needed.
One area of the Law Commission report which has raised particular concern in some quarters is that concerning health care decisions intended to have effect when a person loses Mental incapacity. These decisions are commonly known as "living wills", but a more accurate term - "advance statement" - is used by the Law Commission and in the Green Paper.
There is a misconception that the Law Commission’s proposals would make legal provision for advance statements for the first time. This is not the case. Valid advance refusals already have full effect at common law. This means that a person who is worried about the potential for a particular form of medical treatment already has the right to refuse that treatment by way of an advance refusal. A Jehovah’s Witness, for example, can already refuse to receive a blood transfusion. That refusal cannot be overruled.
An advance statement enables people to leave instructions about their medical treatment in anticipation of a time when they are no longer capable of making decisions or communicating them. The sorts of decisions which can be made are only those which a fully competent adult is allowed to make. When mentally competent, each of us has the right to consent to or refuse any form of medical treatment. The instructions included in an advance statement would enable exactly the same decisions to be made, and can therefore include both consenting to treatment or refusing it. As is the position for competent adults, however, advance statements cannot force a doctor to give a particular type of treatment. Nor can they ask a doctor to do anything which is illegal. An advance statement could not, for example, ask a doctor deliberately to end life. The blunt truth is that if a doctor took such action he would be exposed to a charge of murder.
What an advance statement would be able to do, however, is allow a patient with cancer who knows that they may at some future time lose capacity to consent to treatment, or to communicate that consent, to provide that consent in advance - they could even allow the patient to consent to the use of new drugs on a trial basis, if that is what the patient wanted. Equally a terminally ill patient could request that treatment is provided to sustain life for the longest possible time, even if the resultant treatment would normally be considered overly burdensome.
The Government recognises that the Law Commission’s proposals on advance statements raise complex issues on which many people have strongly held personal, religious and ethical opinions. For this reason, the Green Paper specifically seeks views on whether legislation in this area is appropriate, and, if so, what its objective should be.
The Law Commission took the view that some types of serious medical procedures, including sterilisation and donation of tissue or bone marrow, should receive additional independent supervision to make sure that the best interests of the incapacitated individual are properly protected. This supervision could take the form of: consideration by the courts; an independent second medical opinion; or certain other types of supervisory mechanism.
In certain limited circumstances the Law Commission suggested that a departure from the best interests criteria, which I mentioned earlier, might be justified. One of these relates to the withdrawal of artificial nutrition and hydration from a patient in a persistent vegetative state.
In view of the different opinions which exist about whether these patients can, in fact, be said to have best interests, the Government believes that it is important that the criteria are considered very carefully in every case which arises. The Green Paper seeks views on the vital ethical considerations which must be addressed in reaching decisions on the discontinuation of artificial nutrition and hydration in these cases.
The Law Commission also considered that there might be a case for departing from the best interests criteria in the area of medical procedures and research for the benefit of others. The Commission recommended that it should be possible for these procedures to be authorised, in relation to a person without the capacity to consent to them, if the procedure would not cause the person significant harm and would be of significant benefit to others.
An example of this type of procedure is the removal of samples of blood or taking a mouth swab from the patient to investigate his or her genetic make-up. This could be of significant benefit to other members of the patient’s family in identifying and treating inherited conditions. Procedures of this nature could also extend to non-therapeutic research into conditions from which the patient is suffering, for the benefit of others suffering from that condition. The Law Commission suggested that this research should only be justifiable where the procedures involved minimal risk for the patient.
The Green Paper seeks views on whether research of this kind is ethical and reasonable and on whether the conditions for research proposed in the Council of Europe Convention on Human Rights and Biomedicine provide adequate safeguards for patients unable to give consent.
The Law Commission also proposed an extension of the existing legal framework for enduring powers of attorney to include the concept of a "Continuing Power of Attorney". At present, it is possible for people to make enduring powers of attorney to enable their property and financial affairs to be looked after if they become mentally incapable. The Law Commission’s proposals would enable a person with capacity to appoint somebody to make decisions on their behalf if that capacity was ever lost. Under these provisions the decisions which could be taken would cover health care and personal welfare matters in addition to financial matters.
The House of Lords Select Committee on Medical Ethics expressed concern that the decisions of attorneys are unlikely to be completely objective - for example an attorney might find it difficult to decide whether to approve costly medical treatment or nursing care if he or she is either paying the bills or entitled to benefit from the patient’s estate. Equally, given the changing nature of relationships, the choice of Attorney might quickly become out of date, and, by the time an attorney is asked to act, he or she might have lost the close rapport which one existed with the patient. The Law Commission have attempted to take account of these concerns by proposing safeguards and by listing a number of areas where an attorney should not be able to act on behalf of a person without capacity. However, here too there are different views. The Green Paper therefore seeks responses on whether legislation in this area would be appropriate, as well as seeking comments on the Law Commission’s detailed proposals.
The Law Commission also considered the need for new laws to ensure that a broader group of people are protected from abuse and neglect. This group would include people who may not be able to protect themselves, such as the elderly or those with serious physical illnesses, as well as those suffering from Mental incapacity. In particular, it recommended that social services authorities should have a new duty to investigate cases of possible neglect or abuse; and should have short term powers to protect people in these cases.
The Government believes that, although there may be merit in some of the Law Commission’s recommendations concerning these new provisions, there may not be a pressing need for reform in the light of powers which already exist in this area. The Consultation Paper therefore seeks views on the need for legislation and on the practicalities of the proposals.
The Law Commission’s proposals in each of these areas clearly have substantial implications for the legal and administrative systems which would be needed to manage and supervise their operation. The Commission therefore recommended a new court jurisdiction which could deal with personal welfare and health care issues, as well as property and financial matters. The latter are currently dealt with by the Court of Protection and the Public Trust Office. The Law Commission’s proposals would require a substantial extension of their jurisdiction, as well as offering an increased role for the civil courts.
The Government can see the advantage in having a unified jurisdiction in this area, but there would clearly be considerable implications for the court system, both in terms of resources and practicality. The Consultation Paper invites views on the structure proposed by the Law Commission and on the form and extent of court jurisdiction that would be appropriate in particular areas.
I believe that this Green Paper raises many issues of great sensitivity, complexity and importance, which need addressing to ensure not only that the interests of incapacitated persons are adequately protected, but also that those who have to make decisions on their behalf have a clear legal framework within which to do so. The Government is determined to make progress in an area in which those who lack Mental incapacity, and those who care for them, are not adequately protected under the law today. It is equally determined that any reform should command the widest possible public support. The Government has not yet made a decision to legislate in this area. Any legislation would be of wide-ranging social significance and of comparable scope and sensitivity to the Children Act. I therefore hope that the Paper will generate a wide range of responses from all those with an interest in this area, whether professional or personal, to help the Government determine the best way forward.