Joint Committee on the Draft Mental Incapacity Bill Written Evidence


101.Memorandum from the Catenian Association (MIB 831)

SUMMARY AND RECOMMENDATIONS

  A.  The present Bill goes further than the comparable legislation in Scotland (the Adults with Incapacity Scotland Act) by placing Advance Decisions on a statutory basis. Advance Decisions should not be given statutory force.

  B.  There is no clear duty of care placed upon the donees of Lasting Power of Attorney. The provision of a (criminal) sanction in the event of wilful neglect seems to us to afford insufficient protection for the incapacitated person especially with regards to the refusal of medical treatment, including the provision of food and fluids, which might bring about the death of the patient

  C.  There are insufficient safeguards for preventing financial abuse and conflicts of interest between attorney and patient. We propose that the attorneys, whilst maintaining their roles in financial and welfare matters, should not be empowered to make medical decisions. These should remain with health care professionals.

  D.  Nevertheless, the rights of attorneys should include the right to be consulted about treatment as a mark of good practice. The attorneys should therefore be statutory consultees rather than proxy-decision makers in health care matters. This would not only remove a heavy burden of personal and moral responsibility from attorneys, but maintain the current legal liability with health care professionals including the right of patients to due compensation for negligent medical management. If attorneys were to make health care decisions there should be a statutory duty of care on appeals procedures in the event of disputes. In cases of disagreement between doctor and attorney there should first be recourse to a second medical opinion procedure rather than to the courts, which would be time consuming, expensive and practically cumbersome.

  E.  The Bill should include a definition of basic medical and nursing care which cannot be refused by an attorney, court appointed deputy or advance decision. The definition of basic care should include the provision of food and fluids. Difficulties arise when treatment refusals are suicidal motivated or where they are made by attorneys with a financial conflict of interest. The Bill must make it clear that suicidal motivated refusals of treatment eg in the form of a suicide note forbidding resuscitation ought not to be followed and might involve aiding and abetting a suicide. The deliberate withdrawal of ordinary treatment such as insulin or the withholding of food and fluids must never be done with the purpose of bringing about the death of the patient. Any act or omission done with the intention of bringing about the death of a patient should remain unlawful.

DETAILED SUBMISSION

  1.  The Catenian Association is an association of practising Catholic business and professional men (including in particular many lawyers and doctors), most of whom are married and have families. Membership in the United Kingdom numbers about 9,500 and thus is one of the largest Catholic bodies in the country.

  2.  This submission will be restricted to those matters included in the draft Bill, which affect the Catholic viewpoint. The Bill as a whole codifies a substantial number of matters relating to those who suffer incapacity in relation to welfare and financial matters. It also clarifies the law for carers by introducing a statutory general authority to act reasonably in the best interests of the incapacitated. On the other hand, there are sections dealing with "advance decisions" and proxy-decision making which are of concern to us.

LASTING POWERS OF ATTORNEY

  3.  At present no-one can give legally binding consent on behalf of a mentally incapacitated adult patient in relation to health care or welfare matters. However, the contingent necessity to provide treatment and care for the incapacitated has been recognised in law as the "principle of necessity" following the case of Re F in 1990 and subsequently by several other cases. We are not convinced that there is a need for lasting powers of attorney in relation to health care matters because of the developments that have taken place in common law. Indeed, we see potential problems if they are placed on a statutory basis. The views of the next of kin or relative can be extremely useful to health care professionals and ought to be sought as a part of good medical practice.

  4.  However, problems arise when the attorney is not simply bearing witness to the would-be wishes of the patient but rather is making decisions on the attorney's own behalf. There can be no ethical justification for accepting the refusal of treatment of an attorney when there is reason to believe that the attorney's views do not reflect those of the patient or where there is a financial conflict of interest between patient and attorney or where the medical advisers know that medical treatment would be beneficial to the health of the patient. For example, a refusal of treatment by an attorney might lead to the death of a patient obviating the need for expensive residential or nursing home care and/or releasing the estate of the patient. There would cleariy be a conflict of interests if the attorney were to be a beneficiary of the will of the patient. Since attorneys are likely to be appointed from among close relatives (especially children of the donor of the power) this is frequently going to be the case.

  5.  Decisions made by donees of Lasting Powers of Attorney (LPA) will cover financial, welfare and health care issues and will be wide-ranging. We do not believe that there are sufficient safeguards in the Bill to prevent financial abuses. Indeed, in the Commentary and Explanatory notes (p 45) it was pointed out that Master Lush, Master of the Court of Protection, in 1998 estimated that financial abuse may occur in as many as 10-15 per cent of EPA cases that are registered with the Public Guardianship Office.

  6.  The Bill would not prevent the donee of LPA from acting contrary to the medical best interests of the patient. The decision of the donee of LPA will override that of the doctor or relatives. "Subsection (2) clarifies that the general authority will be " trumped" by a decision of a donee of a lasting power of attorney or of a deputy." (Commentary and Explanatory notes p. 24). The donee of LPA does not have a specified duty of care. Therefore, the standards required of the attorney may fall below those of a doctor or nurse who are subject to claims in medical negligence. There is no provision for patients to receive compensation for wrongful decisions made by LPA attorneys that are contrary to good medical practice and judgement. The only safeguard for the patient is in the case of ill-treatment or wilful neglect which would be a criminal offence.

  7.  We therefore propose that the donee of a lasting power of attorney should act as a statutory consultee who ought to be consulted whenever medical decisions are made as a mark of good medical practice but should not be empowered to consent to or refuse treatment or care.

  8.  We believe that the duty of care in the management of incapacitated people would remain with health care professionals who ought to consult the patients' nearest relatives, carers and attorney as a matter of good practice. Involvement of the attorney should be regarded as evidence of acting reasonably under the circumstances. If attorneys are to be empowered to make medical decisions, they should be under a duty of care in civil law to the patient for wrongful decisions. In Scotland, according to the Regulation of the Adults with Incapacity Scotland Act (2000), welfare attorneys have a duty of care under common law. "An attorney, guardian or other person acting under the Act is held at common law to owe a duty of care to the adult with incapacity. They must act with due skill and care in exercising the power they have been given in relation to the adult".

  9.  There is no provision in the Bill for a second medical opinion procedure in the case of disputes between the attorney and doctor. In Scotland, disputes are first referred to a second opinion doctor. If they cannot be resolved then interested parties can apply to the Court of Session to determine if the treatment may proceed. There is no such provision in the current Bill in which disputes would be referred directly to the Court. If this is done we believe it would be time consuming and expensive.

"BEST INTERESTS"

  10.  Although there is a checklist of factors to which regard is to be had in considering the question of best interests (Clause 4 (2) of the Bill), this does not appear to us to be exhaustive or exclusive, for example, there is no mention of medical best interests. These interests, which are decided by the patient's doctor, should be taken into account before health care decisions are taken. Such decisions should be made after assessing the condition and circumstances of a patient and in addition have regard to the other factors referred to in clause 4. We consider that it is essential for medical need to be taken into account before a patient's " best interests" can be determined.

MEDICAL TREATMENT

  11.  The definition is wide and there is no consideration in the Bill of basic or nursing care. Basic care would include those things which are required in both health and disease to sustain life

    —  warmth, shelter, clothing, companionship, food and fluids and the provision of ordinary medical, nursing and palliative care. It should be unlawful to deny a patient basic care through an advance decision or a decision by an attorney or court appointed deputy.

ADVANCE DECISIONS

  12.  The validity and applicability of advance decisions has largely been defined by the case of Re AK which seems to us to be both practical and ethically acceptable. According to this case nothing should be done that is contrary to the known views of a patient when of sound mind provided that care is exercised to "ensure that such anticipatory declarations of wishes still represent the wishes of the patient. Care must be taken to investigate how long ago the expression of wishes was made. Care must be taken to investigate with what knowledge the expression of wishes was made. All the circumstances in which the expression of wishes was given will of course have to be investigated." Re: AK (High Court of Justice, Family Division: Hughes J. (2000) 58 B.M.L.R. 151; [200111 FLR 129)

  13.  We are concerned that the Bill would allow the withdrawal of life sustaining food and fluids from vulnerable incapacitated patients. Thus these sections seem to us to allow euthanasia, which is contrary to Government policy as we understand it and is equally contrary to the teaching of the Catholic Church. Paragraphs 2277 to 2279 of the Catechism of the Catholic Church are set out below:

  Paragraph 2277 Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick or dying persons. It is morally unacceptable.

  Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God, his Creator. The error of judgment into which one can fall in good faith does not change the nature of this murderous act, which must always be forbidden and excluded.

  Paragraph 2278 Discontinuing medical procedures that are burdensome, dangemus, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of " over zealous" treatment. Here one does not will to cause death; one's inability to impede it is merely accepted. The decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected.

  Paragraph 2279 Even if death is thought imminent, the ordinary care owed to a sick person cannot be legitimately interrupted. The use of painkillers to alleviate the sufferings of the dying, even at the risk of shortening their days, can be morally in conformity with human dignity if death is not willed as either an end or a means, but only foreseen and tolerated as inevitable. Palliative care is a special form of disinterested charity. As such it should be encouraged.

  14.  These paragraphs, which conform fully with Article 2 of the European Convention on Human Rights ("Everyone's life shall be protected by law. No-one shall be deprived of life intentionally" ), highlight our concerns about the contents of this draft Bill. The Bill as it currently stands would permit the withdrawal of food and fluids with the result that patients would die. In our view this inhuman practice should be abolished in the Bill.

August 2003





 
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