Government incapacity on mental health
Why the introduction of the Mental Capacity Bill has been such a mad affair.
The Mental Capacity Bill, which was debated in the UK House of Commons earlier this month, has the stated aim of protecting the interests of those with mental incapacity. It is an attempt to clarify who has the right to make choices and decisions for those unable to do so for themselves.
The Bill covers both health-related and financial matters and is the result of a lengthy legislative process dating back to 1989, when a six-year consultation process got underway, culminating in a green paper, Who Decides?, in 1997, a policy statement Making Decisions in 1999, a first draft Mental Incapacity Bill last year and finally, 15 years down the line, the second draft, renamed the Mental Capacity Bill. No wonder that Community Care magazine, the trade paper for social care workers, feels that ‘there is a need for some sort of “closure” in the mental capacity field’ (1).
However, judging from the reaction to the Commons debate on the Bill, it would appear that ‘closure’ on this issue is not going to be easily achieved. According to a London Times political correspondent, it was only a pledge from ministers to tighten safeguards against ‘backdoor euthanasia’ and the last-minute distribution of a letter from the Roman Catholic Archbishop of Cardiff that ‘quelled a growing revolt’ against the proposed legislation (2).
Mental incapacity should not be equated with mental disorder. The diagnosis of mental disorder, defined in the Mental Health Act 1983 as meaning mental illness, mental impairment and psychopathic disorder, is a medical one. The decision over mental capacity, or rather whether someone lacks capacity, is a legal one. While medical opinion will be sought, it is the court that will make the judgement over mental capacity.
The decision over whether or not someone lacks capacity is not a straightforward one; it depends on the nature of the decision to be made. For example, it is perfectly possible to be deemed to have the mental capacity to decide to get married (where the threshold is low, you don’t need to be too bright to tie the knot), but to lack the capacity to execute a will or to refuse life-saving medical treatment.
The question over mental capacity is mainly, though not exclusively, concerned with learning disabilities, brain diseases such as Alzheimer’s or dementia, and for those in a coma or ‘permanent vegetative state’. In such cases it can be difficult to know the wishes or understanding of the person with regard to medical treatment.
The Mental Capacity Bill proposes to rectify this in two main ways. It will give statutory force to ‘living wills’ or ‘advance directives’, which would allow an adult with capacity to refuse certain medical treatment if they lose capacity in the future – for example, refusing treatment that might keep you alive but would also leave you in a permanent vegetative state. It also allows for someone to authorise an individual to have ‘lasting power of attorney’ over them if they lose capacity, the nominated person having legal powers to plan and make decisions on their behalf in regard to health and financial matters.
Many are in favour of the proposals. The Law Society and the Royal College of Psychiatrists support the bill, believing it to offer ‘rigorous safeguards’ on patient safety that will give an individual the right of choice and control over their own life and body (3). Likewise, Richard Kramer, co-chair of the Making Decisions Alliance, believes the bill has the potential to provide ‘a long overdue and much-needed legal framework to support the two million people in England and Wales who, because of illness, injury or disability, experience difficulties in making decisions’ (4).
However, there has been much opposition to the proposals, including from pro-life organisations and the Catholic Church. These organisations believe the Bill opens the way for assisted suicide or for relatives or carers to kill the patient ‘by omission’, for example through the withdrawal of treatment. Paul Tully, general secretary of the Society for the Protection of the Unborn Child, urged the House of Lords to give the Bill strict scrutiny ‘with a view to rejecting the Bill unless the euthanasia nature of the Bill is reversed’ (5).
The group LIFE believes the Bill will ‘open the floodgates’ for euthanasia in the same way it claims the 1967 Abortion Act did for abortions (6). Indeed, such objections, especially from the Roman Catholic Archbishop of Cardiff, are said to have led to the Lord Chancellor pledging to amend the Bill to clearly outlaw any decision that was motivated to kill a patient (7).
Much of the press coverage of the House of Commons debate focused on the chaotic nature of the debate and the apparently polarised views of the participants. The issue of mental incapacity and living wills is a very personal and emotive one. BBC Radio 4’s Today programme heard from two women, one whose mother indicated by blinking that while she was and would remain in a permanent vegetative state, contrary to her earlier wishes she did not want to die when push came to shove. The other woman had to watch her mother’s slow and painful death as doctors were not allowed to help her to die (8).
Such agonising personal cases seem unlikely to be resolved by the new legislation. As it happens, advance directives have already been established in case law, and the physical and emotional pain of death is first and foremost a personal one, with the medical profession at times involved but with legislators far removed. However, the debate over the Mental Capacity Bill reverses this, and this reversal sheds light on contemporary views of humanity.
Those opposed to the Bill focused on the ‘danger’ that it could somehow allow doctors or carers to make decisions that were motivated by a desire to kill the patient. In other words, the main preoccupation of the legislators and the pro-life groups was that, given the chance, every doctor is a potential Harold Shipman and every carer out to bump granny off for the inheritance. The supporters of the Bill also tend to focus on the dangers posed to vulnerable people by their relatives or carers.
One principle of the new Bill is a worthy one. Capacity is to be assumed unless there is evidence of incapacity. What are the chances of the government and campaign groups leaving us alone to use our capacity to look after those closest to us?
Ken McLaughlin is a senior lecturer in social work at Manchester Metropolitan University. He writes here in a personal capacity.
spiked-issue: Mental health
(1) Does the bill add up?, Community Care, 15 July 2004
(2) Promises to buy off rebellion over backdoor euthanisia, The Times (London), 15 December 2004
(3) ‘Living wills’ are necessary, Ed Nally, Guardian, 16 December 2004
(4) Age Concern website, 13 December 2004
(5) Christian Today, 15 December 2004
(6) LifeSite, 15 December 2004
(7) Promises to buy off rebellion over backdoor euthanisia, The Times (London), 15 December 2004
(8) Today, BBC Radio 4, 14 December 2004. See also The terrible final choice, Alice Miles, The Times (London), 15 December 2004
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