Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Lisa, Alison and Clare back to the Committee. I think that Rosaleen raised a number of issues last week, so we are grateful that you have come back to the Committee. The first issue is around clause 1(4) and the amendment suggested by Disability Action. Perhaps you can give us your view on that and if there any questions, we can open the meeting up.

Ms Lisa Trueman (Department of Health, Social Services and Public Safety): Thank you, Chair. I will start on clause 1.

We remain of the view that we would not be able to give the proposed amendment practical effect on the ground, as we would effectively be saying that there will never be cases where someone lacks capacity and is unable to make their own decisions because it will always be possible to support them. That is clearly not the case, and that is why we included Part 2 to enable decisions to be made on someone's behalf when they lack capacity, provided that certain safeguards are met.

If the Bill were to place a statutory obligation on healthcare professionals that they must support a person — for example, a person in a coma — to make a decision for themselves, the outcome would be inevitable in our view: a decision would simply not be made for that person. That sits at odds entirely with what the Bill is trying to achieve, not least with the healthcare professionals' duty of care.

The same could be said for someone with advanced dementia or a person who is simply unconscious at the side of the road following a car accident. That is why clause 1(4) is framed as it is, as is clause 5. It rightly says that you cannot jump to the conclusion that someone is unable to make a decision for themselves. You must first give that person all practicable help and support, taking the steps outlined in clause 5, which, as the Committee will be aware, goes further than the English legislation. Most importantly, the clause has been drafted to take account of the fact that that may not in reality be possible. The Department believes, therefore, that it has gone as far as it can in relation to the clause.

The Chairperson (Mr Ross): OK, thank you. We have dealt with the issues before; we just want to look at them for a second time. Does anyone have any questions? No, happy enough.

OK, move on to clause 7(11) and the issue raised by MindWise.

Ms Trueman: On closer analysis, it is clear that the issue being raised is already addressed in clause 7. The clause only requires the decision-maker to consult the relevant person:

That is made clear at the start of clause 7(7). Whether it is appropriate to undertake the consultation will be dependent on a number of factors, for example, the relationship that the potential consultee has with P.

If we look at the example put forward by MindWise, it would just not be appropriate to consult a person who clearly did not have P's best interests at heart. The code of practice will further clarify that and include case scenarios by way of example. It will also explain that it will be good practice for decision-makers to have a record showing how they thought carefully about whom they should and should not consult. In any event, the weight given to the views expressed by any of the consultees listed in that clause will also depend on a number of factors, for example, the extent of their knowledge of P, the amount of contact they have had with P and the relationship with P. The purpose of the consultation is to seek information that would assist the decision-maker in determining best interests. It is not to ask the consultee what decision they would make in that scenario.

We hope that that reassures the Committee and stakeholders that we have already addressed that issue.

The Chairperson (Mr Ross): OK, any questions on that? An issue was raised by Disability Action about clause 16.

Ms Alison McCaffrey (Department of Health, Social Services and Public Safety): After careful consideration of Disability Action's suggestion, our view is that it just would not be practicable to require a second opinion to be obtained every time someone's capacity is assessed under Part 2, particularly when you consider how often and, in some cases, how quickly that may need to be done; for example, where P is in clear danger. It would, in our view, greatly impede the carrying out of routine tasks and potentially make it impossible to lawfully do many of the things that have to be done daily in the lives of people who lack capacity. However, we do not want to appear dismissive. There is obviously a genuine concern behind Disability Action's suggestion that we need to address. It is probably useful if I briefly recap on some of the safeguards that are already provided for in the Bill, just to explain how we might see them working to address that concern.

First, it is important to remember that nothing can be done under Part 2 at all unless the core safeguard in clause 9 is complied with. It requires that the person doing the act must reasonably believe that P lacks capacity in relation to the matter. For example, where P and his carer disagree that P lacks capacity about whether he should have, say, a routine dental check-up, the core safeguard in clause 9 means that D — in this case, probably the dentist — will have to try to resolve that disagreement. Otherwise, it is hard to see how he can provide evidence that his belief that P lacks capacity is a reasonable one. If that belief is not a reasonable one, then the core safeguard in clause 9 is not met, and the dentist will risk legal action if he proceeds with the intervention. That is a really important point about how Part 2 will work in relation to routine interventions. That will, obviously, be explained in a lot more detail in the code of practice, which will also provide more examples to guide those who work under the Bill and those to whom the Bill will apply.

That is not the end of the matter, because Part 2 goes on to recognise that, where something serious is being done, a formal assessment of capacity must be done, and that must include a statement of incapacity, detailing exactly what in the capacity test P cannot do. That is new. It is not required at the moment, and it is not in the Mental Capacity Act 2005 either. We used the dental check-up as a routine example, a more serious situation in that domain might be that P has a nasty infection and needs a tooth removed but has a real fear of going to the dentist and clearly does not want to go. He needs to go, but it will cause him serious distress. That could be a serious intervention under Part 2, and the dentist would need to make sure that a formal assessment of capacity has been carried out in that case and that he has complied with all the principles in Part 1, which requires him to have taken all practicable steps to help and support the person to make the decision themselves. That is a new safeguard, and it is commensurate with the seriousness of the intervention in that situation.

Beyond that, in even more serious cases, such as depriving somebody of their liberty or giving them treatment that they are clearly resisting or that the nominated person is objecting to, even more is required through the authorisation safeguard. That, if you like, is another formal check on whether the person has capacity, and it must be done before the intervention can proceed. That authorisation cannot be granted unless all the criteria are met, including that the person lacks capacity. At any time, P and their nominated person can challenge the authorisation by applying to the review tribunal, which is a further opportunity to independently check that the person lacks capacity before the intervention proceeds.

To conclude, we need to be mindful that Part 2 covers a very wide range of interventions from the routine to the serious. We make provision for additional safeguards around the question of whether P lacks capacity, but they need to be proportionate and workable on the ground. After having given it considerable thought, we do not believe that Disability Action's suggestion would satisfy those two criteria, but we think that there are enough safeguards in the Bill to ensure that interventions proceed only where lack of capacity has been properly established and that there is sufficient provision in the Bill to resolve disputes about the capacity question.

The Chairperson (Mr Ross): Thank you. Do members have any questions? OK. We will move on to clause 22 and the amendment suggested by the Law Centre.

Ms McCaffrey: The Law Centre has raised a really important point. We are grateful for it having been raised and for the opportunity to explain the rationale behind what is currently in the Bill. Although it may appear to be a case of a nominated person's objection being given more weight than P's resistance, it is a much more nuanced issue than that. It concerns the issue that we talked about before, which was about striking the balance between protecting P's autonomy and protecting their other rights as well in potentially two very different scenarios.

I should say that we spent a considerable amount of time discussing this with counsel before arriving at the position that is reflected in the Bill. I will not go into the ins and outs of that, but, in short, we concluded that applying the same condition — the prevention of serious harm condition — to all cases where P resists might produce some perverse results. An example is probably the best way to explain it. In a very probable case, where a person, P, lacks capacity in respect of a proposed serious treatment and is resisting that treatment, the key thing is that it might not be entirely clear at all why he is resisting it. It may even be the case that the reason why it is being resisted is completely unrelated to the treatment or the consequences of the treatment. However, the key point is that the treatment is in the person's best interests. In such a case, the best course of action will likely be to wait and see if the circumstances will be different later. Clearly, that will not always be practical depending on the circumstances and the treatment. However, the key point is that, if the prevention of serious harm condition were to apply in such a case, it would mean that the treatment could not be given to P unless D reasonably believed that withholding it would cause serious harm. Our sense was that that would be a very high bar to meet, where P is not really in a condition to judge the merits of the treatment. If he were, he would not be treated without his consent. The result would be that P would be deprived of treatment that is considered to be in his best interests. We concluded after much analysis that that would be very difficult to justify where all the other applicable safeguards that are required in the Bill have been met. That is why, as the Bill is currently drafted, the prevention of serious harm condition does not apply where P is resisting. Instead, it is limited to cases where P's nominated person reasonably objects.

As I mentioned at the start, it is ultimately about striking the right balance between conflicting rights, and that is an issue that we come across quite a lot in the Bill. It is our view, after some considerable discussion, that the existing provisions do that, although I accept that it is a difficult issue and there are different views on that.

The Chairperson (Mr Ross): OK, thank you. Are there any questions on this one?

Ms McCorley: Is there any way that the change that the Law Centre proposes could be incorporated? You have said that you feel that it is fulfilled in the Bill, but, given the serious nature of such circumstances, would that be possible? Do you think that it would damage the Bill if it were included?

Ms McCaffrey: We just think that it would not strike the right balance in those cases, and it could end up with treatment that is considered to be in P's best interests not being given to P, even where the nominated person is not objecting and it is clearly in the person's best interests. We just think that it would not achieve the right outcome in that case.

The Chairperson (Mr Ross): OK. On clause 288 very briefly, we are all aware of the issues and the Department's argument about flexibility. We are happy enough that there should be an element of flexibility. In the interests of brevity, is it something that the Department is willing to bring forward an amendment on? If it is, will we get to see that shortly, or is the view that you are not going to amend it?

Ms Trueman: You are aware, as you have said, of our views on clause 288. It is intended to provide a mechanism for promptly rectifying any unintended consequences or loopholes that may be inadvertently created by the complexity, size and uniqueness of the Bill. In other words, clause 288 is there, if you like, to deal with the unknown unknowns. It also reduces the chances of needing a further Bill to supplement the Mental Capacity Act, should the Bill be enacted. We have, however, taken on board the Committee's comments. As outlined in our previous correspondence, we are discussing the matter with counsel. That work has not concluded yet. We are, of course, grateful for the opportunity today to have further discussion and hear any further comments that the Committee may have to inform that work.

The Chairperson (Mr Ross): We are fairly clear where we stand on it without the need for much more of a discussion. We would be grateful if we could see any amendment as soon as possible to avoid a circumstance, such as we had with the Justice Bill, where it can be a bit stressful towards the end. We should make sure that there is some flexibility there, but I do not need to rehearse those arguments. There are no other questions on this. Thank you very much. We appreciate you coming back.