Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 420-425)


9 OCTOBER 2003

  Q420  Mr Burstow: The point I am making is that we are talking about the precise drafting of the legislation, not the situation which arises out of the common law we currently have. The drafting I have just read to you surely provides a situation which was not anticipated and as a consequence this directive in that situation would not have been one which would have been binding.

  Dr Craig: Could I come in on this one? Reading Clause 24 I was filled with horror because section (2) provides chaos and muddle. I really do not see how the Government can possibly argue that advance directives should be legally binding when there are so many situations which undermine their validity. In an emergency situation in casualty or an acute medical ward when a junior doctor is called to a crisis situation, he cannot decide whether Patient A's advance directive is valid or not in all these various scenarios. It is just totally impractical. May I also point to the experience in America which shows that in fact legally binding advance directives do shorten life, they can be a death warrant, they can cause patients to die unnecessarily early. There was a paper I read a few years ago which showed that patients who had signed advance directives died earlier than those who had not. The Federal Government said, "Great, these are working", because their aim was to cut health care costs. The patients who had signed advance directives were dying of things like (inaudible) after successful hip operations, they were dying of coronaries because they were not resuscitated, and all this sort of thing. They are really dangerous. One final point, an example of when advance directives are dangerous and should be overridden: a consultant physician had a coronary and he survived initially and he told his junior doctor he was not to be resuscitated. He then had a cardiac arrest and he was resuscitated and this happened four times. That man is now enjoying a happy retirement and he is thankful that the junior doctor did override his wishes and he said to a colleague, "Do you know, that was the only occasion that young man ever gainsaid my wishes."

  Q421  Baroness Knight of Collingtree: I wanted particularly to ask a question of Archbishop Smith, if I may. It deals with the Catholic Bishops' Conference Statement which has been presented to us. It actually started with the suggestion by the BMA, which has no force of law behind it at all, that giving food and drink is treatment. The Conference stated, "Existing case law already permits patients in a persistent vegetative state to have `treatment' . . . withheld with the aim of causing death." That is actually not true because, as I understand it, the Law Lords who made this decision made it perfectly clear it was not to be used as a ground rule, that it could be done to patients although in fact now we have scores and scores of cases on record where this is being done to patients. The Conference said, "The law has been left, in the words of one Law Lord, in a `morally and intellectually misshapen state', and he was one of the Law Lords who was dealing with that particular Bland case". Then you go on to say, "The Draft Bill does nothing to reverse this unfortunate situation." Would you like to comment on this please?

  Archbishop Smith: There is a difficulty with the Bland case, and I am not going to give all the details of it because it is complex. In the old days, if I can put it like that, medical people generally would talk about basic care, in other words, feeding, hydrating, washing and so on. What the Bland case appeared to do was to include that basic care as treatment and there was a confusion there, I think with respect to the Law Lords, because it is perfectly legitimate for me as person who is capable mentally and so on to refuse treatment which others may decide would be in my best interests, but if I decide, "This is too burdensome for me", it is perfectly morally and ethically acceptable to say, "That is my choice, even though I know as a consequence my life will be shortened." The unethical part, we would say, is, "If I choose to do that with the specific intention of shortening my life." Does that help?

  Q422  Baroness Knight of Collingtree: Yes, except I was more interested in those patients who do not wish to die and are in fact dying through this particular ruling. That is what I was trying to ask you, whether you think the draft Bill does address that point which, to me, seems grossly wrong?

  Archbishop Smith: No, I do not think it does. This is one of our difficulties. I do not think it is clear enough in the Bill. There ought to be some cautionary element to say, "Even where somebody has got a lasting power of attorney or general authority, that person cannot act with the consequence of producing or leading that person to death." In other words, there must be some restriction on what can be permitted and what cannot.

  Lord Habgood: This was a subject of great discussion on the Select Committee 10 years ago, and I think I was in a minority of one in saying that refusal of hydration and nutrition should not be regarded as equivalent to refusal of treatment; it was not a form of treatment, it was about basic care. In the Bland case, it was less undesirable because Bland had no cerebral cortex, no consciousness, and this was a quick way to let him die. If the refusal of food and drink takes place in somebody who is conscious, then it seems to me you are in a different ballgame altogether. To starve to death is not consistent with basic care, as I see it.

  Lord Rix: I agree.

  Baroness Knight of Collingtree: Thank you.

  Q423  Mr Burstow: We have partly picked up on the other point I wanted to ask, which was this concern about how you deal with fluctuating capacity which was very much part of the Church of England's submission, and I think it has been picked up by other submissions as well. It would be useful to hear from any of the witnesses of any specific thoughts and suggestions they have about how to improve the Bill to ensure there are safeguards in respect of that.

  Lord Habgood: Can I go back to the point I was making at the beginning, namely much depends upon prognosis and whether the incapacity is judged to be permanent or temporary. It seems to me that particular provisions of the Bill need to be written with that dichotomy in mind. If you have permanent incapacity, it seems to me it is permissible to take action through the various mechanisms proposed here. If you have temporary incapacity, it seems to me the aim must be to try to restore as much capacity as possible in order somebody can make decisions for themselves.

  Dr Howard: It is very difficult because you are considering fluctuating capacity, and I think a number of us have said also "fluctuating decisions" even if you are capacitated. A lot of the problems with this would not arise if the issue of capacity did not trigger off the full effects of advance decision making and proxy decision making in a way which is going to bind the doctor. If advance decisions were indicative, as I think they ought to be, and if proxy decision makers were consultees, patient advocates, rather than people who were in the driving seat making the decisions, I think a lot of these problems would lessen.

  Q424  Mr Burstow: You have made your views on that very, very clear today. I wonder if there were any other safeguards over and above those which you particularly want to be sure the Committee was mindful of in framing its report and recommendations in due course?

  Dr Howard: I agree with Lord Habgood, in that in clinical situations what we always try to do is enhance the patient's capacity. That may well mean treating the medical conditions which are pre-disposing to incapacity, such as chest infections and so on.

  Q425  Chairman: If an advocate is acting for somebody who is completely incapacitated and advises the decision, is that so different from an attorney in the same position?

  Dr Howard: The attorney would actually be making the medical decision according to the Bill. An advocate or the consultee should be involved in the decision making process as a matter of good practice. I think this ought to be placed on a statutory basis. The attorney should be a statutory consultee, somebody who is recognised under statute law and ought to be consulted.

  Chairman: The questions we have not reached you have actually answered because we have slightly wandered occasionally from the actual subject we were on. The only things we have not reached are the new decision making mechanisms, Questions 4 and 5, and you might like to write to us on them. I think we have your views now on basic care. If there is anything on lasting power of attorney, please write to us as well. We have reached the time to finish, thank you very much indeed, it has been a long afternoon. We have found it very, very helpful. With Baroness Finlay first and then yourselves, we have found it a very helpful afternoon. Thank you very much.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 November 2003