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Mon, 10 Jan 05 | House of Commons - Written Ministerial Statements

Summary

The following Written Ministerial Statement was made today by the Constitutional Affairs Minister, David Lammy.

Contents

In response to a recommendation by the Pre-Legislative Scrutiny Committee, the Government placed a draft Code of Practice, accompanying the Mental Capacity Bill, in the Libraries of both Houses on 8 September 2004. Members of the Commons' Standing Committee (19 October to 4 November) referred extensively to the Code during discussions. Members commented that they found the Code very helpful in giving them details on how the Bill would work in the real world. Many Members spoke of the importance of the Code for successor implementation and they appreciated the fact that the draft Code had been prepared at such an early stage. The Government is very grateful for the constructive nature of the comments that have been made about the Code.

The draft Code is a living document. It will change as a result of discussions on it so far, and will change further during its passage through the House of Lords. It will then be subject to a full public consultation. Given the importance of the Code, the Government has decided to produce a short summary of the revisions we expect to make to it. This includes changes that will need to be made as a result of amendments to the Bill, as well as suggestions Members made about the Code itself during the Commons Committee stage. We have also been continuing our dialogue with stakeholders and they too have suggested some helpful changes. We hope this summary will help to inform Lords' debates on the Code by giving them the most up-to-date picture possible of what we expect the final version of the Code to took like, before it is issued for full public consultation.

Chapter 3: Capacity to Make a Decision
The Code already contains details on communicating with someone using simple language, visual aids and other communication aids, The Government is making an amendment to the Bill that will set out the steps someone should take to communicate with someone who has difficulties in communicating. Therefore we will slightly amend this section of the Code to refer to the relevant clause in the Bill.

Chapter 4: Best Interests
Chapter 4 of the draft Code discusses the best interests principle. The Code explains how the Bill's best interests checklist should be used by decision-makers to decide where the best interests of the person lacking capacity lie. Given the importance of this principle, we have decided to expand on it. In particular, we will amend it to make the objective nature of best interests even clearer. We will emphasise the importance of considering all relevant facts and circumstances when assessing what would objectively be in a person's best interests

We will include further clarification on the legal status of advance statements requesting (rather than refusing) treatment. This was an issue discussed at Committee, Advance statements requesting treatment are an expression of a person's wishes and feelings and as such are already implicitly included in the Bill and the best interests checklist. But we have agreed to clarify the position on advance requests for treatment in the Code of Practice.

If a person has taken the trouble to write down an advance statement of their future wishes, then any treating clinician would have a duty to consider these wishes and feelings as part of the best interests determination. The more specific and well-thought out the statement, the more likely that a clinician will find the statement persuasive within the best interests assessment. We will make this clear in the Code.

Committee members raised concerns about discrimination against the elderly and people with disabilities, If able-bodied people think generally that life for the disabled and for elderly people is 'less good', this could have an impact on decisions made about these people or the care that they receive. We will therefore amend the Code to emphasise that it can never be In a person's best interests to be discriminated against or given less favourable treatment on the basis of age or disability. The Code will point out that the Disability Discrimination Act 1995 provides that hospitals, care homes and social services must take reasonable steps to provide people with disabilities with the same standard of service, on the same terms, as all other members of the public. We will also explain that since best interests is an objective test, any subjective views that an individual might hold generally about the quality of life of people with disabilities or the elderly will not be relevant as a part of the assessment.

In Committee, members raised concerns that the Bill does not make provision for an act done to someone who lacks capacity that is intended to provide a medical benefit to a third party, We will clearly state in the Code what is permissible under the Bill. This would confirm current common law that, in some cases, best interests would permit testing or treatment for the benefit of third parties, where it meets the wider interpretation of best interests. The Code will give specific advice to guide professionals or the Court of Protection on cases where testing or treatment for the benefit of third parties is at issue. It will clarify which cases should always be considered by the Court of Protection,

We will also include in the best interests section more information on communication support for those lacking capacity who have difficulties in communicating their wishes. We will make It clearer that all reasonably practicable steps should be taken to help the person communicate his present wishes and feelings.

Chapter 5: Acts in Connection with Care or Treatment
The Code deals with the duty of donees of Lasting Power of Attorney and court-appointed deputies to give accounts, when looking after the finances of someone who lacks capacity. However, when it talks about carets without formal powers paying for goods and services, It does not mention that they should also keep receipts and proofs of payment. We will add this useful piece of advice for caters to the Code.

Chapter 6: Lasting Powers of Attorney
We welcomed a helpful suggestion that the Code could suggest to someone making a financial Lasting Power of Attorney, that they could stipulate that someone else should check the attorney's accounts periodically. We will include this suggestion in the Code.

People will also be able to state in a financial Lasting Power of Attorney instrument that it should only be used when the donor has lost capacity, (Welfare attorneys can only make decisions when someone has lost capacity.) People asked how anyone would know that the donor did in fact lack capacity. We will therefore amend the Code to explain that it is the donor's responsibility to explain exactly what he means by this to ensure that any such conditions are workable. For example, the donor could say that the Lasting Power of Attorney should only come into effect when his GP has confirmed his lack of capacity to manage his own property and affairs, in writing,

The Code contains many examples that help to show how the Bill will operate in real-life situations. One example deals with the ability of donees of Lasting Power of Attorney to make gifts on the donor's behalf, and illustrates this with a donee using the donor's money to pay his grandson's school fees. This is misleading, since school fees might not come within the scope of gifts. We will amend this example.

We will add a further example to clarify an area that people have found difficult. That is, when someone with a financial Lasting Power of Attorney continues to carry out some financial transactions for himself, because he Is capable of doing certain things at certain times, but also needs his attorney to do some things for him. The example will make clear that people, such as bank staff, should be prepared to allow both the donor and the donee to carry out transactions.

Chapters 6 and 7: Attorneys and Deputies
We received a useful suggestion about the need for clients of the Office of the Public Guardian to ensure the information held on the registers of Lasting Powers of Attorney and deputies is up-to-date. Both the Code and guidance issued by the Office of the Public Guardian will state that people should notify the Office of any change of name or address of donors donees, deputies and the people for whom they act. In the case of the Lasting Power of Attorney register, this will be the duty of the donor, for as long as he has capacity to do so, but responsibility will fall to the donee if the donor is not able to do so. This will help to ensure that the registers remain up-to-data.

Chapter 8: Advance Decisions
The Joint Committee on Human Rights asked why there was no requirement in the Bill for advance decisions to be made in writing. The Code of Practice will be amended to ensure that it is In line with any changes made to the Bill requiring valid advance decisions to be in writing and witnessed. The Code will stress the Importance of making the contents of advance decisions as clear and 'watertight' as possible. It will recommend that advance decisions should be made after consultation with a health professional

The Committee also asked whether someone would need to specify In an advance decision that they did not wish to receive artificial nutrition and hydration (ANH), The Code will make it clear that ANH is regarded as treatment. People will need to specify what treatment they are refusing and then specify, in addition, if they wish the refusal to apply even where that treatment is necessary to sustain life. The Code will emphasise that those making advance decisions would be advised to discuss it with a health professional who could explain their treatment options.

Chapter 9: Protection and Supervision
Chapter 9 of the Code gives information on detecting and preventing abuse of those who lack capacity. We have accepted the suggestion that the definition of abuse in the Code could be extended to include threats to restrain someone's liberty. It is important that the Code lets people know that there are many types of abuse and that verbal threats and intimidation may constitute psychological abuse, and we will therefore expand the Code's section on this subject.

Chapter 11: The Independent Consultee Service
The Government tabled a number of amendments to clauses 34 to 39 on the independent Consultee (IC) service. The House of Commons Standing Committee accepted these changes and we will therefore need to amend the Code accordingly.

We have amended the role of the IC in the Bill from simply advising the decision-maker on the best interests of the person who lacks capacity to more clearly representing the person's wishes and feelings as well. The Code will clarify that the rote of the LC will be both to represent the person who lacks capacity, where this is possible, and to give the decision-maker advice and information to enable the decision-maker to reach a decision about what would be in the best interests of the person who lacks capacity. In particular their role will be to give Input on the person's wishes, feelings, beliefs, values and other factors.

The revised Bill stipulates that the requirement to consult an IC, where there is a decision to move someone lacking capacity Into a care home, is triggered when the stay is likely to be for longer than 8 weeks. This applies regardless of whether the accommodation is provided or arranged by a Local Authority or the NHS. (Where an NHS body provided for accommodation in a hospital the relevant period will remain 28 days). The Code will reflect this.

The Code will also reflect an amendment that ensures an IC is involved in relation to people whose residence is initially intended to be less than 28 days/8 weeks if the period is later extended beyond the applicable period.

We have amended the Bill to make clear that ICs do not need to be consulted when the patient is to be detained in hospital (or otherwise required to live in the accommodation in question) under the Mental Health Act 1983. Nor will they need to be consulted about treatment which is regulated by that Act. The Code will point to this exclusion.

We will amend the Code to add the IC to the list of people for whom the Code is produced and who have a duty to have regard to it.

Chapter 12: Research
The chapter on Research will be amended to include information on changes to research governance and the role of the Central Office for Research Ethics Committees from 2005.

The Code will clarify that if a deputy had no relationship with, or knowledge of, the person who lacks capacity before his appointment as deputy, then he or she should not be the person consulted about the participation of the person lacking capacity in research. We will amend the reference to the researcher's right to appeal if a caret or nominated person has advised against involving the person who lacks capacity in the research. We will clarify that the carer or nominated person has the final say. We will also clarify what is meant by terms such as "negligible risk" and "not unduly invasive".