Law: When you can't decide, who will?

The rights of the mentally incapacitated are not legally clear. Government proposals try to address this.
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The Independent Culture
THERE ARE dentists working in mental health hospitals who believe that the best way to stop patients biting themselves is to pull out all their teeth. At present they can do this, because the law does not properly recognise the rights of mental patients.

Penny Letts, secretary of the Law Society's mental health and disability sub-committee, who has been made aware of a mental health institution where teeth-pulling goes on, says: "The teeth are extracted because this is considered the best way to deal with the health care needs of all the patients - it stops them biting themselves and other patients." But she agrees that this procedure may not be in the best interests of the individual patient concerned.

In other cases, carers have become so timid that they are afraid to administer aspirin when a patient complains of having a headache.

"This legal vacuum has caused great uncertainty in the care of people who lack the capability to think for themselves," explains Ms Letts.

Last week the Government gave its first indication of how it was planning to review the state of mental health law. Keith Vaz, Parliamentary Secretary at the Lord Chancellor's Department, speaking at a conference organised by mental health charity Mencap, outlined the Government's long-awaited commitment for taking forward the four-year-old Law Commission's proposals on mental health. These include new powers that will give carers the right to take health and financial decisions on behalf of people who lack the mental capacity to do so for themselves. Carers will gain greater control over the lives of mentally ill patients, brain-damage victims and people with learning difficulties. It will be left to the courts to rule in very serious cases - for example, where there has been a request for a life- support machine to be switched off - but the new laws will enable carers to make decisions in other health matters.

Lawyers and civil-liberty campaigners have long been concerned by the lack of legal certainty surrounding the rights of mentally incapacitated people, and the position in which this places carers.

These new powers, says Ms Letts, will give legal status to some of the community's most vulnerable people. A general "power to act" would make such treatment lawful, but only if it were carried out for the welfare or the health care of a mentally incapacitated person, if it were reasonable to do so in all the circumstances.

Mr Vaz said last week that the new powers could give "incapacitated people the sense of empowerment". He added: "When people are unable to decide for themselves we want to make sure that their interests are protected and the best possible decisions are made for them." He said that the new laws would provide a "clear legal framework for carers responsible for day-to-day decisions on behalf of an incapacitated person." But he added: "At the same time it would place a responsibility on carers, doctors and social services professionals to take into account whether someone would be able to make a decision themselves with the right kind of support."

Mr Vaz said there was also a wide-ranging support for a new "continuing power of attorney". This would allow anyone to nominate someone to make health care and welfare decisions on their behalf when they are mentally incapacitated to do so. The current enduring power of attorney allows people only to choose someone to make financial decisions.

While the Government feels that there is enough consensus to bring in these new powers, the message is less clear about living wills. Mr Vaz said that responses to the Government's consultation paper on reform of the law had revealed deeply divided opinions over living wills - written advance directives that set out clearly how patients want doctors to deal with their medical condition when they are unable to make the decision themselves. Said Mr Vaz: "Both sides, with equal sincerity, held very strong and widely differing views. These are very sensitive issues. We are still considering the best way forward on the medical issues raised in `Who Decides?' [the Government's Green Paper on mental health law]."

The full proposals for a reform in mental health law are due to be published in October. These are expected to include the legal status of living wills.

There is also expected to be provision for an extended jurisdiction for the Court of Protection, which would resolve disputes concerning a patient's capacity to make decisions, and clashes between doctors and carers.

While many mental health groups support what the Government is doing, the speed of the progress of the reforms is causing some concern. Brian Baldock, chairman of Mencap, says: "Although we are pleased that the Government is reviving this vitally important issue... people with learning disabilities and their carers need legislation to protect them, and not just more proposals."

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