6.Memorandum from the British Medical
Association (MIB 1185)
1. The British Medical Association is a
professional association of doctors, representing the interests
of all doctors in the UK. The Association has in excess of 127,000
members (around 80% of UK practising doctors are members). The
BMA is an independent trade union and a scientific and educational
2. The British Medical Association very
much welcomes the publication of the Draft Mental Incapacity Bill
and believes it to be a significant step forward in the care and
treatment of incapacitated adults. The Association would, however,
wish to draw attention to a number of issues, and these are set
3. The BMA is grateful for the opportunity
to submit evidence.
4. How "best interests" are interpreted
in practice will be central to the success of the legislation.
No attempt, however, is made to define "best interests"
in the Bill. The equivalent Scottish Bill uses "benefit"
instead of "best interests" and it would be useful to
explore their respective advantages. It is possible, for example,
that "best interests" might preclude any possibility
of a treatment or intervention that does not harm, or risks only
minimal harm, to the incapacitated person but that could provide
a significant benefit to a third person. Presumably, any intervention
that the individual would have clearly wished to occur would be
considered to be in that person's wider interests, even if not
clinically beneficial. This might include, for example, genetic
testing to benefit other members of the family. If this cannot
easily and clearly be incorporated into the Bill, the BMA would
like to see a separate clause introduced in the Bill that would
enable, with appropriate safeguards, the possibility of interventions
of this kind.
5. According to the Bill, a lasting power
of attorney (LPA) does not extend to the refusal of consent for
withdrawing or withholding life prolonging medical treatment unless
it is specifically mentioned in the LPA. The BMA is concerned
that this might serve to create a presumption that unless it is
specifically rejected in the LPA, patients would always want whatever
treatment was available. The BMA is concerned that this implies
that treatment is almost always in the best interests of the patient.
The BMA considers, in contrast, that treatment should only be
provided where it is likely to provide a net benefit to the patient.
If this clause remains, it must be made clear that continuing
invasive treatment should not be given when it is not in the patient's
interests, even if the attorney has not been authorised to refuse
6. The BMA has a number of concerns with
the general authority. These are listed them below:
What are the limits of the general
authority in relation to medical treatment? Are there thresholds
of severity beyond which the general authority cannot extend,
and if so, where do they lie?
Are there any limits to the general
authority in terms of necessary as opposed to optional treatments?
How will conflicts between the LPA
and the general authority be managed? Also, how will conflicts
between individuals who both believe they are operating under
the general authority be managed?
7. Clear guidance will therefore be needed
in the Code of Practice as to the scope of the general authority,
at what point a decision by a proxy or the Court is required,
and whether the Bill applies to "necessary" as opposed
to elective treatments, even though the elective treatments might
benefit the patient.
8. How will disputes between attorneys and
health care workers and between separate individuals both of whom
may believe they are operating under the general authority be
managed? Although the Bill creates a provision for recourse to
the Court of Protection for rulings on single issues, the BMA
would like to see the Code of Practice containing detailed advice
in relation to mechanisms for the local management of disputes
about the best interests of the donor, particularly, for example,
where the decisions are not of the gravity of withdrawing life-prolonging
treatment but nevertheless raise best interests issues.
9. ADVANCE DECISIONS
The BMA welcomes both the inclusion
of advance refusals in the Bill, and the clarification, under
section 25, of doctors' non-liability where they act in good faith
in accordance with what they reasonably believe to be a valid
advance directive, or where they act in contradiction to an advance
directive that they did not know existed.
The BMA would like to see mention
in the code of practice that unless a woman's advance refusal
specifically refers to refusal of life-prolonging treatment while
pregnant, it is extremely unlikely that the refusal will be deemed
to be valid.
No mention is made of the relation
between the Incapacity Bill and mental health legislation in regard
to advance refusals. It is the BMA's understanding that, currently,
advance refusals are not applicable to treatment provided under
mental health legislation. The Association would not wish to see
any change in this position.
The Association would like to see
mentioned in the Bill that an advance refusal or directive would
not be valid if it was produced under coercion.
The BMA is concerned that some existing
advance directives may be deemed invalid if they do not meet the
specific requirements of the Bill. The Association would not want
the Bill to take away any existing common law mechanisms for making
The BMA considers that people should
not be able to refuse, in advance, the provision of "basic
care", which, in the Association's view, includes the administration
of medicine, or the performance of any procedure which is solely
or primarily designed to provide comfort to the incapacitated
patient or alleviate that person's pain, symptoms or distress.
The Association would like to see this in the legislation or the
code of practice.
10. The Association would hope to be involved
in any consultation process where the code or codes of practice
will have an impact on the work of doctors or other health care
11. While the BMA considers that, as a matter
of general principle only competent adults should be considered
as live organ donors, and supports the view that proxies would
not be able to consent to live donation, the Association would
wish for scope to remain for truly exceptional cases to be considered
by the courts on an individual basis.
Power to call for reports
12. The Bill refers to Lord Chancellor's
Medical Visitors and the requirement for them to carry out medical
examinations of individuals who may lack capacity, and who may
also be required to inspect those individuals' medical records.
What powers will these Visitors have where individuals do not
consent either to examination, or to the release of their medical
records? For example, where it is believed that an individual
may lack capacity and a medical report is requested, will the
Visitors be able to proceed in the face of a refusal from the
individual concerned? If not, how will such a situation be managed?
Is the post and role of Medical Visitor a new post or are Medical
Visitors already employed by other statutory bodies?
Restrictions on the general authoritythe
use of force
13. While the BMA fully endorses restricting
the use of force or other constraint to interventions solely directed
at promoting the best interests of patients, there may be some
unintended consequences of the Bill as drafted. Would leading
or guiding an incapacitated person by applying slight directional
pressure constitute a use of force and if so could it only be
justified in order to avert a risk of serious harm? Bournewood
highlighted uncertainty about the issue of whether compliant incapacitated
persons were in fact detained. What would actually constitute
a statutorily significant restriction of liberty and would it
always need a substantial threat of significant harm to justify