5 September 2014
Mr Allan Chapman
Department of Health, Social Services and Public Safety
Mental Capacity Bill Consultation
Room D2.10, Castle Buildings
Stormont Estate, Belfast
Dear Allan
Consultation on the Draft Mental Capacity Bill (NI)
Thank you for the opportunity to respond to the consultation on your draft Bill.
Our standards team really appreciated the opportunity to meet with members of
the Bill team in August to explore the policy intentions of the Bill and the rationale
behind the way particular clauses have been drafted. As you know, we are
supportive of the ambitions of the Bill and are keen to work with you to align, as
far as possible, the detail of the Bill with the principles and guidance we set for
doctors’ practice. This written response provides full detail on the issues we
explored at that meeting and we would welcome further conversations once you
have had an opportunity to consider the points in the attached summary.
As the independent regulator for doctors in the UK, our purpose is to protect,
promote and maintain the health and safety of the public by ensuring proper
standards in the practice of medicine. We do this by:

keeping up-to-date UK registers of qualified doctors

fostering good medical practice in the UK

promoting high standards of medical education in the UK

dealing firmly and fairly with doctors practising in the UK whose fitness to
practise is in doubt.
We also provide guidance for doctors on expected standards of professional
conduct and practice, and we can restrict or remove a doctor’s registration when
those standards are not met. Our core guidance Good medical practice (GMP), and
the explanatory guidance that supports it, describe what is expected of all doctors
registered with the GMC.
While we do not have a direct role in determining either the law or government
policy in the areas covered by the draft Bill, we see it as important to try to
influence development of the legal framework, where it may impact doctors’ ability
to comply with agreed regulatory requirements. The draft Bill has implications for
almost all of our guidance to doctors, principally the guidance on Consent: patients
and doctors making decisions together (2008), Confidentiality (2009), Treatment
and care towards the end of life: good practice in decision making (2010), Good
practice in research and Consent to research (2013) and Child protection (2013).
We therefore are keen to be helpful to your development process by highlighting
issues where:
a
there may be a conflict with the principles and standards that we set for
doctors’ practice, or the proposals may reinforce the duties and
responsibilities we place on doctors;
b more explanation or clarity may be needed to ensure that doctors are able
to comply with both the provisions of the Bill and GMC guidance; or
c
we see potential for unintended consequences that may affect patient
safety and standards of care.
We want to make clear that we support, as a highly commendable policy goal, the
intention of setting out in one Bill agreed principles that apply to all circumstances
in which an adult’s autonomy might be compromised. We recognise that this is
very challenging, as it is difficult to strike a universally acceptable or applicable
balance between greater empowerment of people whose capacity to exercise
autonomous choice may be impaired, and the need to meet obligations to protect
them or third parties from a risk of serious harm.
The consultation document explains that the approach set out in the draft Bill in
many ways mirrors provisions in the legal framework in England Wales and
Scotland, and it clearly builds on established good practice which we welcome as
helpful to both doctors and patients.
However the Bill introduces what we see as novel approaches to determining a
person’s decision making capacity and their best interests which can be seen as
ethically and legally contentious, and which may conflict with the duties and
responsibilities we place on doctors. There are other provisions in the Bill which
may impact the standard of care delivered by health and care staff and their
employing organisations. For example the definition of medical treatment with
‘serious consequences’ for a patient potentially could capture every intervention,
thereby greatly increasing the number of formal capacity assessments required in
hospital and community settings.
For ease of analysis, we set out our views and comments in the attached summary.
We would be pleased to have the opportunity to explore these issues further, or to
contribute to the work developing the draft Code of Practice, if you would find that
helpful.
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Yours sincerely
Alan Walker
Head of Northern Ireland Affairs
Email: awalker@gmc-uk.org
Telephone: 028 9031 9944
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GMC response: draft Mental Capacity Bill NI
General points
We see the goals of the Bill as highly commendable even if challenging to achieve:
a Agreed principles and procedural requirements on decision makers that apply in all
circumstances where an adult’s capacity to decide is or might be impaired
b A framework which ensures that individuals with a mental disorder are treated
with the same respect for their personal autonomy as given to those suffering
from physical disorders
We are concerned by two novel approaches set out in the Bill that we believe have limited
or no legal precedent. These are:
c the definition of capacity to decide which includes within the checklist of factors
consideration of an individual’s ability to ‘appreciate’ the information provided to
them.
d The definition of best interests which includes as a relevant consideration the
potential for harm to others resulting in harm to the person lacking in capacity to
decide.
We also see a number of areas where the scope for uncertainty or disagreement about the
application of the principles of the Bill would create significant volumes of referrals for
formal assessment, second opinion, or court applications, as well as enquiries and possible
complaints to the GMC and others about doctors’ practice in meeting the requirements of
the Bill. So we are keen to see more detail and further clarification in these areas, whether
through changes to the Bill or in the proposed Code of Practice.
Definition and assessment of capacity
The definition is broadly similar to those adopted in the Mental Capacity Act 2005 (‘MCA’)
the Adults with Incapacity Scotland Act 2000 (‘AWISA’), in as much as they focus on
disordered functioning of a person’s mind or brain which affects their ability to
understand, retain, use and weigh up information and communicate a decision. However
the addition of the need for the person (‘P’) to “appreciate the relevance of that
information and to use and weigh that information as part of the process of making the
decision” would seem to set the bar for establishing capacity much higher than in these
jurisdictions.
We understand the concern to be able to intervene in particular cases where a person
may not be regarded as mentally disordered but their illness causes delusional thinking or
lack of insight - as explained in the consultation document. And we note the arguments
that a requirement to consider P’s appreciation of information as being relevant to him/her
could be read into the MCA and AWISA definition and/or accords with currently acceptable
day to day practice. However we have doubts as to whether current case law supports this
approach. We are also concerned that the question of whether P appreciates the
information given to them will be very subjective, leaving scope for considerable
disagreement amongst professionals, patients and others and therefore extensive use of
the escalation processes required by the Bill (second opinion, formal assessment, court
application) to ensure doctors and other decision-makers satisfy the requirements for
‘protection from liability’.
The question of P’s appreciation of information as relevant will be a consideration in all
cases not just those where there is a specific concern about delusional thinking and
therefore, depending on prevailing attitudes, including this requirement seems to risk
undermining the presumption of capacity and the goal of ensuring equal respect for the
autonomous decisions of people with mental illness.
It may be relevant here to note that evidence presented to the House of Lords Select
Committee on the application of the MCA suggested a tendency amongst health
professionals to assume incapacity because a patient suffers from a particular illness or
disability with the burden falling on them to demonstrate capacity. It also suggested a
tendency to assume incapacity and move to formal assessments where a patient
disagreed with the course of action proposed by a health professional.
Definition and application of the ‘best interests’ test
We note that the definition of ‘best interests’ is similar to the MCA approach. Although the
person proposing to intervene must also have regard to whether failure to do the act
proposed is likely to result in harm to other persons with resulting harm to the person
lacking capacity [Part 1 s.6(10)].
This appears to be a particularly novel approach in law and seems highly subjective,
requiring doctors and other decision-makers to be able to identify and assess possible
harms to possible third parties from P’s possible actions before they can draw a conclusion
about P’s best interests. It also seems to rely on assumptions about prevailing social
attitudes, for example we note the argument that since imprisonment will always be a
‘harm’ to P then preventing P from being able to take actions that may lead his
imprisonment will always be justified. However, there are also prevailing attitudes about
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the extent to which we should permit people with some disabilities to make ‘unwise’
choices or take the sort of risks that if taken by others we would considerable ‘reasonable’.
Unless guidance can be provided in the Code of Practice setting out clear parameters
around this requirement, it would seem likely that the reasonableness of the opinion
formed by a doctor on this question of ‘harm’ to P could only be decided by a court after
the fact. If this is a fair analysis; there would seem to be potential for significant numbers
of best interests decisions to be taken through the escalation and authorisation processes
required in the Bill, in order to ensure doctors and others have protection from liability in
case of any disagreement.
We note the argument that the ‘best interests’ test as set out reflects the approach taken
in recent court judgements in about the MCA best interests test. We are aware of a
number of cases where the courts considered the extent to which a ‘best interests’
judgment can or should incorporate the interests of third parties. But these cases were
about incapacitated adults who had a significant personal relationship with the third party
e.g. a family member where their interests clearly intersect.
It seems a significant departure from precedent, to incorporate the interests of third
parties where they do not intersect directly with the incapacitated adult, in order to justify
actions to protect that third party from a risk of harm presented by the incapacitated
adult. We think it may be at odds with ECHR requirements which see as permitting states
to balance respect for and empowerment of individuals with proportionate action to meet
a state’s duty to protect P and others from risk of serious harm.
Certainly we are concerned that, without a definition or clear guidance on what can be
considered as ‘harm’, doctors and other decision-makers will be reflecting prevailing social
or professional attitudes to harm which may run counter to the goal of ensuring that the
same approach is taken to people who have physical or mental illness. This might be more
likely given that the threshold is set at ‘harm’ to P when, elsewhere, the bar for
intervening in P’s life is ‘serious’ or ‘significant’ harm.
‘Effective’ advance decisions to refuse treatment
We understand the challenge in providing a clear description of what may constitute an
‘effective advance decision’ when it comes to life-prolonging treatment. However, in
referring to their use in mental health treatment and care without providing guidance on
when they might be effective, leaves significant scope for confusion in practice. It may
mean that doctors rely entirely on the GMC guidance on the status of advance
decisions/directives – see our end of life care guidance – so you may want to consider the
likely implications of this for patient care.
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Treatment with serious consequences
The explanation of this concept in the consultation document appears to suggest that
almost all treatments, even routine minor interventions, could be regarded as treatment
with serious consequences for P:
a If P would be distressed
b If the arguments as to whether the treatment is in P’s best interests are finely
balanced.
Once a treatment is seen as having serious consequences, the decision-maker would have
to take the steps required in the Bill to ‘authorise’ treatment (formal assessment, second
opinion, appointing an advocate) before it could proceed. On the face of it, this could
create a steady flow of requests for authorisations and otherwise avoidable delays to
providing appropriate care.
We note that the discussion is focused on decisions about carrying out interventions, and
wondered whether Do Not Attempt CPR decisions would be covered? It has been
suggested that as DNACPR decisions are decisions whether to provide CPR they are
covered here. We understand the argument but are conscious that, in the view of some
clinicians a DNACPR instruction to healthcare staff where CPR will not work for the patient
concerned simply recognises that a treatment has been ruled out as not relevant. So it
may be helpful to flag this as an important issue in the Code of Practice.
Research
We note with interest that the provisions of this section of the Bill reflect the MCA
approach which does not rely on the ‘best interests’ principle. It might be helpful to
provide explanation with the Bill or in the Code of Practice given the strong statements
elsewhere about ‘best interests’ as the underpinning foundation of the Bill. It may also be
helpful to consider whether the Code of Practice will need to explore the issue of
interventions which might be regarded as research being relabelled as for example
‘innovative treatment’ or ‘audit’ etc where that may facilitate a less protective approach to
involving a person with who lacks capacity.
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