Mental Capacity Bill - 2nd Reading

Dear Andy,

Further to my recent letter we are writing again because a great deal of misinformation continues to be spread about this Bill and we want you to know the facts not the fiction. Some of you have had direct experience of the misinformation that is being spread through letters you receive inspired by the Society for the Protection of Unborn Children (SPUC). No-one who has read the Bill, can, we think, believe any of SPUC's allegations.

We are writing again now, therefore, to remind you of the Bill's ethical and moral purpose and to make it clear that where there have been genuine concerns we have responded to address these.

What the Bill will do

It will:

- Protect and empower vulnerable people - by setting out in law what we expect to happen when someone lacks or may lack mental capacity. Why would we want to stick with a situation where people can be completely written off as mentally incapable? The Bill changes that, and says mental capacity is to be assessed according to the decision to be taken - not any and every decision;

- Make it clear to informal carers and professionals who in law can take what decisions and actions when: at present people are often uncertain about what they can do, or are misinformed . Why would we want to allow people to continue believing in the fiction of 'next of kin' and leaving it to chance as to whether loved ones are consulted about their best interests? The Bill gives loved ones status.

- Increase people's choice about what they can do if they fear or know that they will lose mental capacity. Why would we want to leave it to individual doctors to decide whether or not an advance decision to refuse treatment should be respected? And why shouldn't people have the choice of choosing a loved one to take decisions for them on health and welfare matters as well as finance? The Bill makes advance decisions safer by setting out when they should be binding. And it gives people the choice of saying who should decide for them when they can no longer do so t themselves.

Strong support from many different quarters

- This Bill has been lobbied for for 15 years. Forty well-respected, well-known national charities and voluntary organisations formed the 'Making Decisions Alliance' to lobby for it.

- Last year a parliamentary scrutiny committee endorsed the Bill's principles and general direction and agreed there was a clear need for legislation.

But we have taken serious concerns seriously

In particular, end of life concerns...

We have had helpful exchanges with leading Catholics and the All Party Pro-Life Group about concerns:

- That the Bill might introduce euthanasia .
- About advance decision .
- About what medical research would be permitted .

We have done a great deal to respond to these concerns :

- We have included an entirely new clause (clause 58) declaring that - for the avoidance of doubt - nothing in the Bill affects the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (assisting suicide).

- We have changed the provisions for advance decisions in several ways. First it is now only necessary to be satisfied that an advance decision does not exist or is not valid or applicable in order to provide treatment without incurring liability. This helps keep the balance in favour of preserving life. Secondly, we have tightened up the description of how an advance decisions must be expressed. Thirdly, we now say that a decision is not applicable to the treatment if there are reasonable grounds for believing that circumstances exist that the person did not anticipate at the time of the advance decision, and that these would have affected his decision if he had done so.

- We have also explained the stringent safeguards that will govern the participation in research and the checks and balances that will apply.

And our changes have been welcomed...

- In a recent briefing note, Archbishop Smith and Professor John Finnis, recognised that the Government had listened to their concerns and in response had made a number of positive changes to the Bill. They also stated categorically that the Bill cannot now be described as 'a Bill introducing a permission for euthanasia".

We will now address some of the wider concerns about the Bill and why they are misplaced.:

There is concern that a doctor has a duty of care to their patients and attorneys will have no duties.

This is not true.

- Attorneys will have legal duties known as 'fiduciary duties'. These currently apply to finance, but duties such as 'the duty not to take advantage of the position of attorney' will be relevant when to all decisions. These duties are set out in the common law and will be fully explained in the Code of Practice.

- Any breach of these duties can result in the attorney being liable in civil, or even criminal law.

- Attorneys are also bound by the best interests principle.

- If a clinician feels that an attorney is not acting in the person's best interests then they should go to the Court of Protection to resolve the matter.

- If life-sustaining treatment is withheld according to an attorney's wrong assessment of best interests then the clinician could be liable if they failed to go to the Court of Protection to authorise treatment.

There is a concern that 'best interests' is overly subjective and could lead to decisions being made according to what the person would have wanted - eg not wanting to continue to live.

Again this is not true.

- Best interests is an objective test. It is not "what I would want if I were the person" nor is it only "what the person would have wanted".

- A person's wishes and feelings must indeed be taken into account, but they are not the only factor that needs to be considered. All the circumstances that appear to be relevant must be considered. For example, this could include:

- the views of family and friends;
- the views of the medical team; and
- other factors that the person would have been likely to consider if they were able to do so.

- Also, unlike a capacitated person, an attorney cannot make an 'unwise' decision. They can only act in the person's objective best interests.

- It is important to recognise this is not a new approach. It is in common law now.

There is a concern that the Bill will make decisions to withdraw treatment more likely.

Again not true.

- In fact the Bill makes it much clearer that doctors should consult those close to the patient before making any decisions. This offers greater protection than at present.

- If a person chooses an attorney, it will be someone they trust. And that attorney will only be involved in decisions about life-sustaining treatment if they are explicitly given that power by the person him or herself.

- An attorney cannot ask or make a doctor do anything unlawful.

Finally, some fear that the Bill will give statutory significance to suicidal decisions to end life out of 'hatred of life'.

- No. Any evidence of "hatred of life" would throw into doubt the validity and applicability of any advance decision because it would indicate despair and depression. This would mitigate against the person having the capacity to make an advance decision because it would be difficult for them to use or weigh up information. This is an important part in the decision making process.

- A note expressing a general wish to die would not be specific enough to qualify as a valid and applicable advance decision.

- To quality, an advance decision to refuse treatment must pass strict tests:
- the treatment in question must be the one specified in the advance decision;
- the circumstances must be those specified in the advance decision;
- there must be no reasonable grounds for believing that circumstances exist which P did not anticipate when making the advance decision, and would have affected his decision if he had known about them and
- if the treatment in question is life-sustaining treatment, then the advance decision must specify that it is to apply to such treatment.

We have explained all the steps we have taken to reassure and to ensure that the Bill's positive intentions cannot be questioned. The whole ethos of this Bill is supportive and protecting. And that is the spirit in which is must be interpreted.

Strong support:

- The Making Decisions Alliance, which was established with the express purpose of campaigning for Mental Capacity legislation, is a coalition of over 40 voluntary sector disability organisations including the Mental Health Foundation, Patient Concern, Mencap and Help the Aged. The MDA has been closely involved in the progression of the Bill.
- In an article in the Guardian, Toby Williamson of the MDA said:
- 'Every one of us may at some point in our lives be in a situation where we might have difficulty making decisions for ourselves because of illness, injury or disability. Surely we would want full protection of the law to ensure that if at all possible we were supported to make decisions for ourselves or that decisions on our behalf about our health and welfare were made by someone we trusted and in our best interest'. (Article by Toby Williamson for the Guardian, 21 June 2004)

- And in a letter to the Times, Toby Williamson and Richard Kramer, co-chairs of the MDA, wrote:
'We urge all MPs to support the new Mental Capacity Bill to ensure that everyone has control over the treatment they receive'. (letter from Toby Williamson and Richard Kramer to the Times, 31 August 2004)