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J Med Ethics. 2007 April; 33(4): 247–248.
PMCID: PMC2652786

Timetable for the implementation of the Mental Capacity Act 2005

Timetable for the implementation of the Mental Capacity Act 2005

In December 2006, the government announced that it would phase in the introduction of the Mental Capacity Act 2005 for England and Wales. The independent mental capacity advocates (IMCA), who will support serious decision making for “unbefriended” incapacitated adults, and some directly related elements of the legislation to support them, will be introduced in England in April 2007, as will the Act's code of practice. The criminal offence of ill treatment and wilful neglect will also be introduced at this time. At the time of writing, the Welsh Assembly's Minister for Health and Social Services had yet to fix the date of commencement of the IMCA service in Wales.

From October 2007, the remainder of the legislation, including the new Court of Protection, the Public Guardian and the Office of the Public Guardian is due to become operational for England and Wales. The government believes that this is required to ensure adequate time to train the civil servants and professionals affected by the Act. Lasting powers of attorney are also due to begin operating from this time.

The British Medical Association's (BMA's) Ethics department is due to publish guidance on the Mental Capacity Act in April 2007. The guidance is available at http://www.bma.org.uk

Regulation of reproductive technology in the UK

In December 2006, the UK government published a white paper: Review of the Human Fertilisation and Embryology Act, setting out its proposals for revised legislation on human reproductive technologies.1 Two aspects of the government's proposals have proved controversial. The first is the proposal to merge the Human Fertilisation and Embryology Authority (HFEA) with the Human Tissue Authority (HTA) to form a single regulatory body, the Regulatory Authority for Tissue and Embryos (RATE) covering the whole of reproductive technology, pathology, anatomy, transplantation and the use and storage of tissue. This proposal was first announced in July 2004 as part of a government initiative aimed at reducing the number of “arm's length bodies” (government advisory and regulatory bodies). A review was undertaken and proposals were made for merging those bodies with similar roles.2 Although the HFEA and the HTA both carry out inspections and both regulate areas covered by the European Union Tissue and Cells Directive,3 there are also significant differences between the areas covered.

All articles are written by Veronica English, Danielle Hamm, Caroline Harrison, Julian Sheather, Ann Sommerville, BMA Ethics Department; ethics@bma.org.uk

The main concern, expressed by a number of professional bodies, including the BMA, the Royal College of Obstetricians and Gynaecologists and the Royal College of Nursing, is that it will be impossible for a single body to have sufficient expertise to make informed decisions about the wide and diverse area of practice covered.4 The RATE could, of course, appoint advisory bodies to advise it on policy matters but this raises questions about accountability. The arguments that have been put forward in support of the merger have been political (reducing the number of arms length bodies by one) and financial (although it has been argued that equal financial savings could be made by other changes short of merging the two bodies). The merger requires a change in primary legislation and it is hoped that before the change is made, the arguments on both sides will be thoroughly rehearsed to determine the most appropriate way to proceed.

The second area of controversy is the government's stated intention to prohibit the creation of hybrid embryos for research. The use of animal oocytes as a “vessel” to develop human embryonic stem cells would help to overcome the severe shortage of human oocytes for research aimed at improving the technique of cell nuclear replacement and the development of human embryonic stem cells. Again, the government has not provided any clear arguments for taking this position which is opposed by a large number of professional organisations and individual scientists.5 The white paper claims that there is considerable concern among the public about the creation of hybrid embryos and, in particular, the possibility of the embryos being implanted and brought to term. In fact, replacing such an embryo in a woman would be a criminal offence under the Human Reproductive Cloning Act 2001. There are also strict controls on the research that may be undertaken whereby the HFEA must license each individual research project. Given the parliament's support for embryo research in 1990 and 2001 and the government's stated support for stem cell research, combined with the existing statutory controls on embryo research in the UK, this proposal seems unnecessarily restrictive. The BMA, together with other organisations, will be encouraging the government to rethink its position on this issue.

Sterilisation of disabled child

In January 2007, widespread media attention focused on the case of Ashley, a severely mentally disabled child in America, who underwent extensive medical treatment to stunt her growth and reproductive development. Now 9 years old, Ashley was reported to have the cognitive ability of a 3‐month‐old baby. Her treatment included a hysterectomy, the removal of her breast buds, an appendectomy and oestrogen therapy. The Seattle Hospital Medical Ethics Committee had previously discussed and approved the treatment which was intended to give Ashley a better quality of life and so was deemed to be in her best interests. The family also took advice to clarify the legality of sterilising a mentally incompetent minor and were reportedly advised of its lawfulness since sterilisation would be a “side effect” of treatment rather than its primary intent. The primary intent was defined as improving Ashley's quality of life through avoiding menstrual pains and bleeding and, by keeping her size small, allowing her carers to continue providing personal care.6

Subsequent debate on both sides of the Atlantic concentrated on the ethical acceptability, or otherwise, of the treatment. Reactions ranged from total condemnation from some parts of the disability lobby to an influx in requests for similar treatment from parents who have children with similar disabilities to Ashley. This may lead to similar requests in other jurisdictions.

In the UK, such treatment would require a court hearing in which the arguments about the minor's best interests would be analysed. Any serious medical intervention for an incompetent person has to fulfil the “best interests” criteria. For sterilisation, a court authorisation is essential, unless it is very clearly the side effect of an essential therapeutic procedure such as removal of a malignancy.7

Freedom of Information Act—deceased patients' records

There have been concerns that deceased patients' records may be disclosable in England and Wales under the Freedom of Information Act (FOIA). Scottish FOIA contains a specific exclusion for deceased patient records and this is therefore, not an issue in Scotland. The Information Commissioner has however, recently ruled that an National Health Service (NHS) Trust was right to refuse the disclosure of a deceased patient's records under the FOIA. Epsom and St Helier University hospitals, NHS Trust had refused the request for information on the grounds that a duty of confidence was owed to the deceased under section 41 of the Act. Section 41 applies to information obtained from a third party (in this case the deceased and her medical staff) whose disclosure would constitute an actionable breach of confidence. The exemption is “absolute” and is therefore not subject to the public interest test. The information commission upheld the decision in October 2006.8 He found that the duty of confidence attached to health records can survive the death of the person to whom the records relate and the Trust was therefore correct to apply the exemption under section 41. He also found that any action for breach of confidence would have to be brought by the personal representatives of the deceased but damages were unlikely to be awarded, as there was no obvious financial loss. Instead, any action would most likely be in the form of an injunction to prevent publication of the information requested.

Portugal to hold referendum to ease abortion law

Following a referendum in February 2007 Portugal's government has pledged to legalise abortion in the first 10 weeks of pregnancy. Portugal currently has a fairly restrictive abortion law which permits abortions in cases of rape, foetal abnormality and if the woman's life is in danger. The February referendum consulted the public on widening the criteria for legal abortions, asking whether abortion should be legalised within the first 10 weeks of pregnancy, at the women's request.

This followed a case in July 2006 in which, a doctor, a nurse and three women were jailed for their roles in abortion procedures, despite an earlier acquittal in 2004. Family planning agencies reportedly estimate that up to 40,000 illegal abortions are carried out each year, with one in four resulting in hospitalisation of the women.9

Although voter turnout was too low, at 44 per cent, to be legally binding, the Portuguese Prime Minister, Jose Socrates, has promised to liberalise the law in line with the 59 per cent majority vote.

Male circumcision and HIV transmission

Two of the largest randomised clinical trials into whether male circumcision reduces the risk of HIV transmission were stopped, mid‐trial, at the end of 2006, due to compelling evidence that male circumcision significantly reduces the risk of female‐to‐male HIV transmission. The trials, based in Kenya and Uganda, showed a 53% and 48% reduction in HIV acquisition, respectively, in circumcised men compared to uncircumcised men.10 In both the studies, the research subjects were counselled in techniques for preventing HIV and reducing risk, and the circumcisions were performed by trained medical personnel.

The Joint United Nations Programme on HIV/AIDS, in conjunction with the World Health Organization, United Nations Population Fund, Unicef and the World Bank, has “note[ed] with considerable interest” the study results, and plan to review the data and produce recommendations.11

Doctors Opposing Circumcision, a US lobby group opposed to male circumcision, has urged the medical community to “guard against being overwhelmed by the hyperbolic promotion of male circumcision” and to receive the new findings “with extreme caution”.12 Their concerns have focused, among other things, on the effects of male circumcision on male‐to‐female HIV transmission and the need to balance perceived benefits of male circumcision against perceived harms of circumcision.

A further study is currently underway in Uganda looking at whether male circumcision reduces male‐to‐female HIV transmission. Results from this study are not expected until winter 2007.

In the UK, circumcision of male babies and children is somewhat controversial; whether non‐therapeutic circumcision—male circumcision that is performed for any reason other than physical clinical need—is permissible is based on a balance of medical harms and benefits, in addition to social and cultural harms and benefits. A thorough analysis of whether the results of these studies suggest a net benefit has not yet been put forward.

Withholding and withdrawing life‐prolonging medical treatment

The BMA is publishing a third edition of its guidance Withholding and withdrawing life‐prolonging medical treatmen–guidance for decision making, in April 2007. The report offers comprehensive guidance on the controversial and emotive issue of withholding and withdrawing life‐prolonging treatment from patients of all ages and includes new guidance on the Mental Capacity Act 2005 (for more information see: www.bma.org.uk).

References

1. Department of Health Review of the Human Fertilisation and Embryology Act. Proposals for revised legislation (including establishment of the Regulatory Authority for Tissue and Embryos). London: Stationery Office, 2006
2. Department of Health Reconfiguring the Department of Health's arm's length bodies. London: Department of Health, July, 2004
3. European Parliament Council of the European Union Directive 2004/23/EC of the European Parliament and the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells. Off J Eur Union 2004. L10248–58.58
4. English V, Denton J. Where is the debate about RATE? BioNews Commentary. 17 December 2006. http://www.bionews.org.uk /commentary.lasso?storyid = 3292 – (accessed 8 Feb 2007)
5. Nurse P, Sulston J, Savalescu J. Stemming studies. The Times. 10 January 2007 (Letters to the editor)
6. Ashley's Mom and Dad “The Ashley Treatment”, toward a better quality of life for “Pillow Angles”. http://ashleytreatment.spaces. live.com/blog/‐ (accessed 8 Feb 2007)
7. Re B (a minor) Wardship: sterilisation [1987] 2 All ER 206 [PubMed]
8. Information Commissioner's Office Freedom of Information Act 2000 (Section 50) Decision Notice. Reference: FS50071069, 23 October 2006
9. Elizabeth Carr‐Ellis E. Abortion poll shows support for easing law. The Scotsman, 6 January 2007
10. National Institutes of Health Adult male circumcision significantly reduces risk of acquiring HIV Trials in Kenya and Uganda stopped early. National Institutes of Health, Press release. 13 December 2006
11. World Health Organization statement Statement on Kenyan and Ugandan trial findings regarding male circumcision and HIV. WHO, statement. 13 December 2006
12. Doctors Opposing Circumcision The use of male circumcision to prevent HIV infection. Doctors Opposing Circumcision, statement. 27 December 2007

Articles from Journal of Medical Ethics are provided here courtesy of BMJ Publishing Group