Response to the Draft Mental Capacity Bill (NI)

Transcription

1 Response to the Draft Mental Capacity Bill (NI) DETAILS OF RESPONDEE I am responding on behalf of the School of Nursing, University of Ulster Name: Elizabeth A Laird Job Title: Lecturer of Nursing Organisation: School of Nursing Address: University of Ulster, Northland Rd, Londonderry, BT48 7JL Tel: ea.laird@ulster.ac.uk Response compiled by: Dr Pauline Black, Lecturer Mr Neal Cook, Lecturer Ms Elizabeth A Laird, Lecturer Dr Columba McLaughlin, Lecturer Dr Bernie Reed, Lecturer Mr Laurence Taggart, Reader Response submitted by 26 August 2014

2 We acknowledge the efforts of individuals, groups, teams and agencies that have developed the Draft Mental Capacity Bill (NI) consultation document. We welcome this opportunity to respond. We appreciate that one of the objectives of producing the new single framework was to reduce the stigma often associated with separate mental health legislation. However, wellintentioned, we are concerned that this decision imbeds the Mental Capacity Bill into current and potential future mental health legislation, and may increase the number of people who feel stigmatised by current mental health legislation. It is our opinion that the Bill should work alongside current and future mental health legislation, similarly to the proposed working relationship between the Children Order and the Bill. We commend the inclusion of a Review Tribunal. However, we recommend no link between the Mental Health Review Tribunal and this proposed Review Tribunal. Both titles may appear similar, however we must continually remind ourselves that Mental Health legislation does not impact on the care of people who are voluntary patients in Surgical, Medical or Psychiatric/Mental health facilities. It is commended that the Courts of Justice can, in certain circumstances appoint a Deputy to represent the person. However, we disagree with the replacing of the Controller (under the Mental Health Order) with the Deputy, as this again reinforces the proposed combination of the Bill and the Mental Health Order. Capacity in decision making has many components and is influenced by many factors. We welcome as positive that the capacity legislation is covering decisions that are issue and time specific. We recommend that the Department reconsiders the use of the word Mental in the title of the Bill. The use of the word Mental and indeed the tone of language used in the Bill would appear to be at odds with the advancing context and developments of Rights of Persons. We refer to Article 3 of the United Nations Convention of the Rights of Persons with Disabilities and in particular to.respect for difference and acceptance of persons with disabilities as part of human diversity and humanity and to the more recent Article 12 published in April 2014: Equal Recognition before the Law. We suggest that Article 12 has implications for the Draft Mental Capacity Bill (NI) and its terminology.

3 The tone of language and terminology in the United Nations Convention of the Rights of Persons with Disabilities Article 12 is focused on the person. The context is inclusion, participation, valuing diversity, enabling, and supporting the person to make his/her own decisions. We commend that the Draft Bill does take account of the need to promote a human rights-based model of disability, and shift from substitute decision-making to supported decision-making. However, the overall tone of language and terminology in the draft Bill appears to be professional focussed. An additional concern is the retention of decisions based on the person s best interests in the Bill. We recommend a shift towards best interpretation of a person s will and preferences as supported by Article 12. The United Nations Convention of the Rights of Persons with Disabilities (2014) Article 12, paragraph 2 highlights that the concept of mental capacity is highly controversial and is contingent on social and political contexts, as are the disciplines, professionals and practices which play a dominant role in assessment mental capacity. Further, Article 12 highlights that the functional approach attempt to assess mental capacity and deny legal capacity accordingly.. is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right the right to equal recognition before the law- when an individual does not pass the assessment. Article 12 further emphasises that any disability or the existence of an impairment (including a physical or sensory impairment) must never be grounds for denying legal capacity. However when reading the draft Bill, the discussions around neglect, finances, and documentation of incapacity suggest that an assessment of mental incapacity could indeed diminish the person s legal capacity. We commend the draft Bill for acknowledging the value of advance care planning and directives as an important form of supportive decision-making, whereby a person can state their will and preferences which should be followed at a time when they may not be in a position to communicate their wishes to others. We note the role of advocacy and lasting power of attorney as outlined in the Bill, however bearing in mind Article 12, such measures should never amount to proxy or substitute decision-making processes.

4 The draft Bill has a focus on documentation, and primarily this relates to assessment and documentation of incapacity. This raises serious issues. Capacity legislation should have at its primarily focus, approaches and processes that support capacity and indeed build capacity and support persons to make their own decisions. The Bill is vague about who will be trained and educated and how, to assess incapacity, and how valid such documentation is, given that capacity in decision-making can fluctuate over minutes. An assessment of incapacity has potential to influence treatment options being considered. Has there been consideration about the area of expertise and indeed the competence level of individuals tasked with assessing and documenting incapacity? The Bill s lack of definition impairment or disturbance in functioning of mind and brain is perceived as positive as it could cover a wide range of conditions encountered in acute and emergency care. Whilst the effect of alcohol and drugs are discussed, no mention is made about the impact of prescribed medications, such as intravenous sedation, for example, if someone is requiring mechanical ventilation. The Bill lists stroke and acquired brain injury as illustrations of impairment or disturbance in the functioning of the brain. It is perhaps important to point out that the definition of acquired brain injury accepted by the HSCTs in Northern Ireland is injury from trauma, hypoxia, metabolic disorders, or infection. It does not include progressive brain disorders or those acquired over time, and it does not include congenital injuries or those acquired by birth trauma. The Bill implies that the resultant impairment or disturbance has left the individual unable to exercise capacity on a long term basis, and this is not in keeping with the notion of capacity as being task and time specific. For example a person may have been rendered unconscious by injury or medication, but is expected to regain consciousness following surgery and/or treatment.

5 Key Points: The decision to develop a single framework imbeds the Mental Capacity Bill into current and potential future mental health legislation, and may increase the number of people who feel stigmatised by current mental health legislation. We recommend that the Bill should work alongside current and future mental health legislation, similar to the proposed working relationship between the Children Order and the Bill. We recommend no link between the Mental Health Review Tribunal and the proposed Review Tribunal outlined in the Bill. We disagree with the replacing of the Controller (under the Mental Health Order) with the Deputy, as this again reinforces the proposed combination of the Bill and the Mental Health Order. We welcome as positive that capacity legislation is covering decisions that are issue and time specific. We recommend that the Department reconsiders the use of the word Mental in the title of the Bill. We recommend that the tone of language and terminology in the Bill is person centred. We recommend a shift from decisions based on the person s best interests towards best interpretation of a person s will and preferences. We are concerned that assessment of capacity is discriminatorily applied to people with disabilities. We commend the draft Bill for acknowledging the value of advance care planning and directives as an important form of supportive decision-making, whereby a person can state their will and preferences which should be followed at a time when they may not be in a position to communicate their wishes to others. We note the role of advocacy and lasting power of attorney as outlined in the Bill, however bearing in mind Article 12, such measures should never amount to proxy or substitute decision-making processes.

6 We recommend that the Bill has as its primary focus, approaches and processes that support capacity and indeed build capacity and support persons to make their own decisions. The Bill is vague about who will be trained and educated and how, to assess incapacity, and how valid such documentation is, given that capacity in decisionmaking can fluctuate over minutes. The Bill lists stroke and acquired brain injury as illustrations of impairment or disturbance in the functioning of the brain. It is perhaps important to point out that the definition of acquired brain injury accepted by the HSCTs in Northern Ireland does not include progressive brain disorders or those acquired over time, and it does not include congenital injuries or those acquired by birth trauma. The Bill implies that the resultant impairment or disturbance has left the individual unable to exercise capacity on a long term basis, and this is not in keeping with the notion of capacity as being issue and time specific.