Mental Capacity Act 2005 (Select Committee Report)

Debate between Baroness Warnock and Baroness Finlay of Llandaff

Tuesday 10th March 2015 Lords Chamber

[Baroness Warnock (CB)]

My Lords, the Government are right in their response to insist that the Mental Capacity Act is innovative, in that at the heart of the Act lies the so-called empowerment ethic. This is entailed in principle (3) of the Act, which states:

“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.

This suggests that it is recognised that mental capacity, as my noble friend Lady Finlay said, is fluctuating and depends on when the person is being assessed. But when the time comes that a decision has to be made on a person’s behalf, then principle (5) comes into operation—namely, that the decision must be made “in his best interests”. Here, like my noble friend Lady Finlay, I find the troubles really begin.

The Government apparently agreed with the committee that more social workers principally—but other people as well—needed to be trained to be assessors of best interest. Of course, this is very difficult because, even with the best training in the world, to make a determination of somebody’s best interest is to make a value judgment; and whatever the training, it remains true that the values of the person making the determination of best interest may be different from those of the person whose interest is in question. For example, it is perfectly possible that the person who is the trained assessor of best interest may think that it is always, or nearly always, in the best interest of a patient who is incompetent to stay alive. On the other hand, the patient himself, if he had been able to make a decision, may have disagreed with that and may have preferred to be allowed to die sooner rather than to live on in a state of incapacity, humiliation, distress and, of course, pain.

It cannot be overemphasised how slippery and evasive the idea of best interest actually is, and lawyers have long disputed—certainly since the Bland case, and probably before—what actually counts as best interest and whether, in the case of Bland, for example, he could be said to have had any interest at all, being in a permanent vegetative state. This is a huge difficulty that really cannot be brushed aside. We need more trained people. The notion of best interest must be addressed in a different way. This is what makes the question of advance decisions—although I infinitely prefer the new title that my noble friend suggested—a matter of enormous importance. Therefore, the question of so-called advance directives is central to the interpretation of the Act and what the Government propose next to do.

It is not only the public at large who are ignorant of, and therefore careless of, making such advance directives but, disgracefully, the medical profession and other professionals who will be involved with people trying to make such decisions. It is also true that these professionals, including doctors, are unwilling to discuss any such matter. I remember the acute embarrassment of my own then GP when I asked him to keep a copy of the living will, as it was then called, that I had made. He did not want to think about it.

In their response the Government were right to say that the royal colleges have a great part to play, particularly the Royal College of General Practitioners. The college will not like being told what it ought to do, but it has a duty to influence all GPs to keep in their surgeries information about how to make such an advance decision. This is genuinely a matter of urgency because, whatever the status is thought to be of an advance decision, it must be taken into account, at the very least, if it has been made properly, if it seems to be applicable and, most important, if it is known at the time of the patient’s deterioration, or first entry into hospital or care home, that he or she has made such a decision.

This is part of the difficulty. There must be an easily accessible register which shows who has or has not made such a decision. As my noble friend suggested, there must of course be a way in which the person, whatever his capacity, can show that he has made such a decision. Therefore one needs something like a donor card or a bracelet that he can wear to say that he genuinely has made such a decision. This will have to be formalised so that it is known to be genuine, and this will be backed up by the register. These matters are of enormous importance because the question of the early, well formed wishes of the person under consideration must be taken into account. After all, this is the heart of the Mental Capacity Act.

It is a rather fiddly little reform that must be taken and GPs are, whether they like it or not, at the heart of it. After all, their surgeries are absolutely stuffed with leaflets and instructions about what to do if you have got diabetes or a mad mother and so on, but not anything about how to record your wishes about your own care and your own decision to refuse treatment in certain circumstances. There is nothing about that at all and I honestly believe that most people do not know that they have, first, a right to refuse treatment and, secondly, that there is a way of making this known. This is the most important issue that the Government must address through general practitioners.

I entirely support what my noble and learned friend Lord Hardie said about the disappointment that it seems that only a forum will be set up. The word “forum” sends shivers down my spine because it means nothing except a talking shop with no powers that will finally wither away out of alienation and boredom.

[Baroness Finlay of Llandaff]

I listened with great interest to what the noble Baroness said. Will she clarify whether she agrees with me that a so-called best interest decision that leaves a patient in pain and distress is actually not a valid best interest decision because it is not in the interests of the person to be left in pain and distress? That decision would, therefore, be open to challenge?

[Baroness Warnock]

I entirely agree with my noble friend.