Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

22.Supplementary memorandum from the Lord Habgood (MIB 1206)

Q1.   Would the inclusion of a legal definition of "best interests" clarify the legislative intent of the Draft Bill or would such a definition be unduly static and inflexible for decision-makers?

  Insofar as "best interests" are a matter for clinical judgment, a legal definition would probably be unworkable. Clinical judgment may be usefully informed, however, by the concept of "medical necessity", ie "treatment carried out to save life, or to ensure improvement or prevent deterioration in a patient's physical or mental well-being". This is likely to be less subjective than "best interests", and less closely linked with patient autonomy which, in the circumstances, is likely to be a difficult criterion to apply.

Q2.   How should the individual's clinical best interests be balanced against their wider interests?

  It depends on what "wider interests" you have in mind. Wishes, values etc are relevant. But while the administration of an individual's estate is clearly an "interest", to balance it against the clinical judgment of "best interests" could lead to abuse. eg Should P be kept alive by artificial means in order to meet the seven year criterion for tax-free gifts?

Q3.  In your view, should the General Authority be restricted to particular categories of medical interventions? If so, what restrictions would be appropriate?

  Financial expenditure using P's resources should be subject to some external check.

Q4.   Do the provisions contained within the Draft Bill enable people to be sure that their beliefs with regard to treatment will be respected if they lose capacity?

  What beliefs are relevant? Would a belief in euthanasia count? hope not. Current rules about confidentiality can make it difficult for chaplains and other religious advisers to discover when issues concerning belief may be relevant to treatment or care. Ideally an appropriate religious or ethical representative should be part of the medical team responsible for making major decisions about P.

Q5.   Should the Draft Bill specify that a person acting on behalf of a person with incapacity should have regard to their values as well as their "wishes and feelings" when deciding what is in their best interests?

  Yes. But insofar as the question implies a proxy decision-maker, I would caution against this for reasons set out in the 1994 report.

Q6.   As in our society people choose to adhere to different values and beliefs, do you consider that the Draft Bill achieves the right balance between respect for individual diversity and respect for life? If not, what would you change?

  Diversity is to be respected, but the law necessarily sets limits because it depends on, and has to uphold, general social attitudes as well as individual liberties. Thus the fundamental reason why euthanasia is, and should remain, illegal is that to legalise it would in the long run generate a profound, and potentially harmful, change in social attitudes towards the sick, the incapacitated, and the elderly. Belief in euthanasia does not give the right to demand it. In the absence of any change in the law, it is important not to allow the present law to be circumvented. Clauses 23 (1 b) and 24 (5) could have this effect in cases where the lack of capacity is not thought to be permanent.

Q7.   In your view does the Draft Bill distinguish between ending life by omission and not aiming to prolong life by inappropriate means? If not, what safeguards would you like to see?

  There are serious and legitimate worries as to whether nutrition and hydration are ethically equivalent to the withdrawal of treatment. The Bland case set an unfortunate precedent. Since he was both incapacitated and completely unconscious the distinction was for him irrelevant. But it is not irrelevant for those who, though incapacitated, retain a degree of consciousness.

Q8.   Will giving advance refusals a statutory basis risk the welfare of patients? If so, how might the Draft Bill be amended to avoid this?

  There are inherent problems in specifying in precisely in advance what conditions and circumstances should be sufficient to bring a refusal of treatment into effect. This is one reason why the name Advance Directive is to be preferred to Advance Decision. A decision is the end of a process, whereas a directive can be an important element within it. To assume that a decision can be made, and must be adhered to, before the precise circumstances can be known, must be to put the welfare of patients at risk. A directive, on the other hand, should be seen as giving valuable guidance for the exercise of proper clinical judgment, as well as protecting doctors against charges of negligence.

Q9.   Should the Draft Bill stipulate that advance decisions must be made in writing?


Q10.   In your view are the safeguards in the Draft Bill sufficient to protect individuals who suffer from fluctuating levels of capacity?

  No. There needs to be a reasonably firm prognosis before any decision is made—and this may take time (at least a year in the case of PVS). This is a further reason why clinical judgment is to be preferred over the legal implementation of advance decisions.

Q11.   The Draft Bill puts into statute the current common law position as regards advance refusals. Would denying capable individuals the right to make statutorily enforceable advance decisions to refuse treatment amount to a form of discrimination against people who later become incapacitated?

  No. A degree of flexibility is necessary for the protection of patients, given that medicine is not an exact science.

Q12.   Do you envisage that there are any medical circumstances when the wishes expressed in a valid advance directive (or a person's wishes expressed through a donee acting under an LPA) might reasonably not be followed by the treating doctor? If so, can you give examples?

  When there is real uncertainty about the prognosis. eg Is it PVS or coma? What degree of recovery from a serious stroke is likely? How quickly will Altzheimer's advance? What are the chances of new treatments being available in time to make a difference?

Q13.   Should the Draft Bill exclude "basic care" or a "minimal level of care" from its procedures and mechanisms? If so, how should "basic care" or a "minimal level of care" be defined?

  Basic care is owed to everyone, whether or not they want to die. This must include paying respect to P's body by keeping it clean, as comfortable as possible, and not subjecting it to unnecessary indignities. On nutrition and hydration, see 7. Some particularly invasive forms might be classed as "treatment" and, to that extent, not part of basic care. There is a case for not including antibiotics as a regular part of basic care. My own view is that this is what should have been done in the Bland case.

Q14.   Do all the witnesses agree with the Catholic Bishops' Conference view that the Draft Bill currently contains insufficient safeguards against donees who fail to carry out their responsibilities properly? If so, how should these safeguards be increased?

  Clause 22 seems to deal satisfactorily with this point.

Q15.   Should Local Authorities be given duties to investigate possible abuse taking place under the provisions of the Bill? Would this approach help to address any concerns you might have about the exploitation of vulnerable people?

  Presumably those with major long-term mental incapacity are already known to Health Visitors and Social Services. If not, surely they should be.

October 2003

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