Joint Committee on the Draft Mental Incapacity Bill Written Evidence


128.Memorandum from Dr I M Jessiman (MIB 1044)

  The current legal position of those over 18 who lack capacity to give or withhold consent is undoubtedly unsatisfactory. In its attempt to overcome this problem, however, the present bill introduces several dangerous concepts particularly with respect to matters of medical care, most especially at the end of life.

  The proposals for advance directives, notwithstanding the intended clarity of section 24, are far too vague and ill-defined. On the other hand, at least as far as medical matters are concerned, the proposals for lasting power of attorney give the attorney dangerously wide and unrestricted powers over life and death.

3.   Presumption against lack of capacity

  3(1)  It is absolutely right that a persons' capacity should be assumed unless it is established otherwise, but (at 3(2)) I am concerned that a lack of capacity is to be judged only on the balance of probabilities, albeit after "all practicable steps" have been taken [to help him make a decision]. "All practicable steps" (at 2(3)) is capable of very loose interpretation and could serve as a cloak for inadequate enquiry. The "balance of probabilities' test undermines the proper establishment of lack of capacity: Particularly with regard to decisions on matters of life and death, incapacity ought to be established "beyond reasonable doubt". On the other hand, for the "re-establishment" of capacity the "balance of probabilities" test should apply.

4.   Best interests

  4(1), 4(2)  The overriding importance of "best interests" is rightly highlighted early in the paper. However, medical best interests receive no mention. The whole ethos, indeed the whole practice, of medicine depends on the pursuit of the medical best interests of the patient. If this is not the case medicine is without motive and there are no criteria by which to measure its value. The recent booklet "A guide for healthcare professionals" (p 8), from the series "Making Decisions: Helping people who have difficulty deciding for themselves" (Lord Chancellor's Dept, 2003) it is noted that "Healthcare professionals can and should provide treatment without consent for people who lack capacity to consent, if it is considered to be clinically necessary and in the "best interests' of the patient" . . . "Healthcare professionals have no authority to make any other sorts of decision, such as personal or welfare decisions." "In relation to medical treatment, the High Court has ruled that "best interests are not confined to best medical interests . . ." The underlying assumption behind these paragraphs is the fundamental importance of medical best interests.

  If medical best interests are to be subordinated to the unguided decisions (opinions) of lay people on medical matters (other than those of the patient himself, eg an attorney or deputy) then the whole basis of medical practice is undermined and in effect meaningless. Doctors' and nurses' skills are devalued and they are prevented from doing their best for the patient.

  4(4) It is accepted that a patient may have good reason, bad reason, or no reason at all, for refusing a particular treatment, but a third party, whether an attorney or a deputy, should not have power or authority to make decisions without any corresponding responsibility—ie without having adequate and explicable reasons. For this reason 4(4) is unacceptable in medical matters. Doctors and nurses can be held liable for any failure to give the best possible [ie proper] medical care. The wide scope of this section ("the person reasonably believes what he does . . .") is such that no attorney or deputy could ever be found liable, however gross a violation of "best interests" they may perpetrate. It would not appear impossible for doctors and nurses to be held liable for failing to provide "proper" care for a patient where the attorney or deputy had flagrantly refused it (and maybe later denied so doing).

  6-7.   The general authority Restrictions on the general authority

  I do not consider it right for an attorney or deputy, still less for a person acting under "general authority" to be able to refuse "life-sustaining treatment". As mentioned above (at 4 (4)), I believe that such an exercise of authority, without responsibility or being answerable to anyone, undermines the whole basis of medical practice.

  10.   Scope of lasting powers of attorney: personal welfare

  Subject to the comments on "best interests" at 4 above, 10(3) and 10(4)(b) are acceptable, but no attorney or deputy should have authority to refuse basic care or to refuse consent to life-sustaining treatment.

  10(4)(a)  It is not clear when, or indeed how, "P's" capacity is to be assessed in this context. 10(4)(a) seems to indicate that if "P" has capacity at the relevant moment he can exercise it, but Schedule 3, Part 4, 14 (1)(a),(b),(c) and 14(2) clearly indicates otherwise.

  Once the power (in the instrument) has been registered, the paragraphs (in Schedule 3, Part 4) just cited would appear to leave the donor "incapable" of accepting or refusing the carrying out or continuation of any treatment whatsoever, at least until the matter can be reconsidered by the court? This approach derives, no doubt, from the legal concept of "presumption of continuance", according to which, once it has been proved that someone is incompetent, or lacks capacity, this state is presumed to continue until the contrary is formally proved. ("Assessment of Mental Capacity", Law Society/British Medical Association, 1995, p 13). Whilst such a presumption may have some legal value it is pernicious in situations of medical care, particularly in cases of serious illness, when capacity may fluctuate widely over a very short period of time. In at least one case in America a patient crying out for food or a drink was refused it on the grounds that she had not regained (legal) capacity to countermand her earlier advance instructions.

  No legal presumption should be permitted to interfere with a contemporaneous ability of the patient to change his mind and to revoke the contents of a living will or the power of an attorney (at least in matters of health care) with respect to the immediate questions of treatment. 20(1) seems to envisage the possibility of sudden change affecting the power of deputies and the same should apply equally to attorneys.

  10(4)("d"?) For the protection of the patient, and indeed that of the doctors and nurses involved, a restriction should be added to this section to the effect that no attorney would have the power to give "a direction that a person responsible for P's health care allow a different person to take over that responsibility" (as specified for a deputy, at 17 (1)(e)). Otherwise, where there is a disagreement over P's best interests, the possibility arises of repetitive "shopping around" until a sufficiently compliant doctor is found.

  12.   Revocation of lasting powers of attorney etc

  12(2).  The same difficulty (as for 10 (4)(a)) applies in this section. Whereas 12(2) seems to suggest it would be comparatively easy to revoke a power previously given, Schedule 3, Part 4, 14(1)(a) and (c) indicates it would be extremely difficult, whether in whole or in part, and certainly not at all quick. In medical matters it must be possible to withdraw any power previously granted at very short notice.

  17.   Section 16 powers: personal welfare

  No court, attorney, or deputy should be permitted to refuse "basic care" (see, for example, the very minimal list in Law Commission document "Mental Incapacity" (Law Com No 231) 1995)). Basic care should include not only bodily cleanliness, the alleviation of pain and distress and the offering of direct oral nutrition and hydration, but also the continuation of ordinary treatment (eg insulin for a diabetic and, in most cases, the assisted giving of flood and fluid for one who cannot swallow). See also at 24 (5).

  23.   Advance decisions to refuse treatment: general

  There is no specification in the Bill of what, if any, formalities are required to establish the legal validity of an advance decision, [written signature, actual date, witnesses' confirmation of patients' capacity at the time, confirmation that they have fully understood what it entails, etc] nor of how it should be formally registered or how long it should be deemed to remain valid. The requirements for advance directives, giving—as they do—power over life and death, should be no less stringent than those for the making of a will.

  23(1)(a) Whereas the specific refusal of a particular treatment may be considered acceptable, "blanket" refusals of all (or multiple) medical treatments [even in various "postulated" circumstances] are not. This is because such a refusal is inevitably cast too widely for the patient to have been able to envisage all the possibilities for future situations or for future possible treatments (see 24(4)(c)). Such refusals fall far short of any semblance of properly informed consent—as required (and expected) for the capable: why should the incapable be any less fairly treated?

  23(2)  The phrase "in broad terms and non-scientific language" is derived from the requirements of obtaining proper consent to the acceptance of medical treatment. However, this is quite inadequate as an expression of sufficient understanding when it comes to refusals of treatment, particularly where these may well be life saving and a refusal may lead to death or serious handicap.

  23(3)  It is highly desirable that the patient should be able to withdraw an advance directive at any time and with the least possible formality. This should allow for the "resumption" (sic) of capacity on the balance of probabilities (as opposed to "beyond reasonable doubt" for the establishment of incapacity)—and in the face of any "presumption of continuance". In other words the retraction of an advance directive must be made easier than the implementation (execution) of one. Otherwise the possibility exists of a patient who has recovered competence being overruled by a blind insistence on the implementation of such a directive (by the law, by a deputy or by an attorney (acting under lasting powers of attorney)).

  24.   Validity and applicability of advance decisions

  24(2)(b)  I believe it would be wrong for a donee (attorney) to be able to be given power to override a properly established advance decision (see section 23)—unless, of course, the advance decision has been withdrawn.

  24(2)(c)  It is hard to see how an action could be inconsistent with an advance directive, still less how evidence of it would be adduced (by whom?) or proven at the time of implementing the relevant "instruction".

  24(4)(a-c)  These requirements are very important in any case of advance decisions. Otherwise wide and vague interpretations, that could be lethally dangerous, might be possible.

  24(5)  No advance directive should be allowed to refuse basic care (see at 10 and 17). If an advance directive is to be allowed to refuse life-sustaining treatment it must specify in precise terms which such treatment is being refused and not seek to encompass "life-sustaining" treatments in general.

  25(3)  This clause should be reworded to mean (as I assume it intends) that any claim of "reasonable doubt" applies to the applicability or otherwise of the terms of an advance directive in a particular case and not to the speculative existence, or otherwise, of an unseen advance directive. If the latter were permissible it could be very easily subject to abuse.

  26-29  Excluded decisions

  The Bill does not seem to address the issue of consent to sterilisation, to termination of pregnancy or to taking part in a research project (most particularly non-therapeutic research which by definition does not benefit the patient). I believe the latter should never be permitted, but all these matters should at least be reserved to a court and not lie within the powers of deputies or attorneys. It would also be totally inappropriate for a court, deputy or attorney to be given power to make an "advance directive" for the patient.

August 2003





 
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