Examination of Witnesses (Questions 540-552)|
14 OCTOBER 2003
Q540 Huw Irranca-Davies: In respect
of, first of all, protecting older adults from abuse but also
detecting cases of abuse where they are happening, what are your
thoughts in respect of a formal regular system of inspection of
people who are vested either with lasting powers of attorney or,
alternatively, with a general authority? Would a formal regular
method of inspection be a valid one, an appropriate one? Is it
overkill, in effect? Is it practical?
Professor Williams: I think the
general authority would be very much as I have just described,
a light touchit would need to be logged in. For the lasting
authority, I think it is a pretty significant decision to say
that "in the event of my being incapacitated I give you responsibility
for my financial affairs". I think people may be reluctant
to do that unless they know there are adequate safeguards in the
system. I think that does presuppose that there is some kind of
inspection process in place. Again, we come back to resources,
we come back to bureaucratising the whole process, although I
think someone who accepts lasting power of attorney, or enduring
power under the existing law, accepts a greater responsibility
and a recognition that it is going to be more time-consuming,
you are going to need to go through the formalities. Under the
lasting power of attorney I would like to see a greater level
of accountability than maybe we see under the enduring powers
Q541 Huw Irranca-Davies: And you
would want that laid out on the face of the Bill?
Professor Williams: I would want
the principle laid out on the face of the Bill, the detail elsewhere.
I do not know whether it is a good example to say rather like
one audits direct payments. I am not sure that is a good analogy.
If I sign a document saying "You look after my financial
affairs in the event of X", I think people are entitled to
safeguards. An increasingly worrying group of people is people
who appear to sign an enduring power of attorney and yet you know
full well that at the time of signing they lacked capacity, their
hand was guided over the bottom of the paper basically.
Q542 Huw Irranca-Davies: On that
basis, as the Bill is currently formed we have under section 12(2):
"P may, at any time when he has capacity to do so, revoke
the power." On the basis of what we are talking about, which
is a formal regular system of inspecting individuals who are given
that lasting power of attorney, should it not also work the other
way recognising that the capacity of an individual who gives that
power to a donor is function specific, is time specific, will
fluctuate over various periods and various instances? Should there
be something within the Bill that recognises we should go back
to that individual on a periodic basis?
Professor Williams: I think, again,
that is extremely useful because incapacity is not necessarily
once and for all. Particularly important is the point you make
that incapacity is not a general thing but is function specific.
Again, coming back to this human rights point, one does need to
periodically review whether continuation of this power of attorney
is appropriate or appropriate in its current form because maybe
things have improved and maybe it has just become so comfortable
that no-one is going to challenge it. I think that could quite
usefully be part of the process, especially where the prognosis
is that the person may actually improve, perhaps less so where
you are convinced that the person's capacity will not improve,
it will get worse, but where there is a possibility that with
education, training or whatever, the person may improve then I
think that would be helpful.
Chairman: Thank you very much. Can we
conclude now with advance decisions to refuse treatment.
Q543 Lord Rix: In your written memorandum
it was suggested that advance decisions should be time limited,
needing to be updated, say every five years, while the person
still had capacity. You then went on to say, alternatively, an
incentive to update could give doctors more scope to deem advance
decisions less applicable after a fixed period. In your view,
how could a requirement be imposed on individuals to review advance
decisions, whilst they are still capable, to ensure that the request
remains current? How would you give power to the doctors, which
might be an unpopular move with many, to make alternative arrangements
to these advance decisions to refuse treatment?
Professor Williams: Firstly, I
very much welcome the inclusion of advance decisions in the Bill,
I think that is a very positive step. I am concerned that, perhaps
as envisaged in the Bill, the advance decision does not have a
shelf life. I might make a decision today that in the event of
X, do not do Y, because Y is horrendous and the possibility of
full recovery is zero, so I say "If I am incapable, do not
do Y, let me die". Five years down the line, Y may be a relatively
simple unobtrusive form of treatment and I think one has to ethically
say should that be allowed to stand because the person made it
in one context, that context has now changed. The context was
that it was intrusive, likely to be unsuccessful, and that has
now changed. I think that people should be encouraged, and perhaps
I would go even further and say required, to revisit their advance
decision periodically. That is one wayto say that advance
decisions have a shelf life of five years after which you come
back and renew. The alternative is a suggestion I floated in my
submission that perhaps the doctor's interpretation after five
years, or a period of time, could be slightly more liberal and
you would give the doctor greater scope to say that circumstances
have changed and, therefore, the advance directive should not
Q544 Lord Rix: You would not think
that this negates the whole purpose of an advance decision?
Professor Williams: It might run
the risk, but at the same time I think we need almost a kind of
public education campaign as to what advance decision making is
all about. It is looking in the year 2003 and saying "In
the event of this, do not do that", and it is based on all
that is happening in 2003, but in 2006 it may be desperately different.
I somehow think that people should be expected to revisit advance
decisions because otherwise you perhaps impose on the medical
profession very difficult decisions.
Q545 Mr Burstow: In 2006 only three
years has gone by and you were talking about five years.
Professor Williams: I am pulling
figures out of the air. I mentioned five but it could change overnight,
of course. To some extent we have just got to pick a figure and
go with it that is reasonable in the sense of the rate of development
of medicine. Five may be inappropriate, I do not know. I think
the principle is that the expectation should be that we come back,
revisit and think "Do we want this to continue", because
otherwise it may involve the medical profession in quite complex
ethical questions: "They said do not do Y, because then Y
was terrible, but actually it is easy-peasy, we can do it".
Q546 Mr Burstow: If Codes of Practice
laid down the form that an advance decision to refuse treatment
would take, which will be clearly liberal in its interpretation
as far as the medical profession is concerned, and also the view
of the fact that advance decisions are made absolutely voluntarily,
nobody is going to force you to do this, would you not accept
then that if they are carefully written, they are not demanding
euthanasia or anything of that sort, and give the doctors sufficient
scope to review the situation clinically over time, would you
not consider that sufficient? The fact that they are made voluntarily,
would you not consider that they should be able to continue to
hold good and doctors should interpret them in the best way possible?
Professor Williams: I think that
presupposes that the advance decision will be clear and will be
Q547 Mr Burstow: I am saying it should
be on the Codes of Practice so that people know exactly how it
should be written.
Professor Williams: It should
be on the Codes of Practice, although in a sense I think one has
to legislate for those that are not clear and, as I say, would
provide the doctor with perhaps quite a serious ethical dilemma
at the end of a particular period of time. I think in principle
it is desirable that we go back and revisit these decisions that
we make in advance because our views may have changed. It is rather
like changing your will, you might have fallen out with the person
you have left all your money to but you never get round to going
to the solicitors to change your will because you have done it,
that is it, it is in the bag and you do not want to think about
death any more. I think that as responsible citizens we should
be encouraged to go back and revisit, whether it be three, five,
ten years, I do not know, that is a figure plucked from the air.
I think it is an act of responsible citizenship, if you like.
Q548 Stephen Hesford: Just on this
point, would not the additional difficulty be that if you had
a period of time when there was a statutory duty to revisit and
you had a period of five years, on your scheme if there was a
decision to be made and it was four years and 364 days a decision
would be made under the advance directive but given full force
because it is within the five years, but under the scheme Lord
Rix was talking about, and doctors have been talking to us about,
if the Codes of Practice were sufficiently well thought out there
would be flexibility to come in and apply what should be applied
at the time, whereas your scheme would actually prevent that flexibility
Professor Williams: I take the
point that any time limit is arbitrary, the age of consent at
16 is entirely arbitrary and a matter of seconds can change things
dramatically, but I still come back to my basic point that we
have a responsibility to revisit such advance decisions on a fairly
regular basis because we are asking professionals to do or not
to do things to us in the event of a context that may not exist
at the time the decision has to be made.
Q549 Stephen Hesford: You are asking
somebody to revisit their advance directive by a certain date
which means that they have got to go all through the process of
having it witnessed again, rewritten again, or could they merely
add a codicil, as it were?
Professor Williams: You could
have a short, fast-track revalidation system if you wanted, and
I think that might make sense. As I say, it is important that
we do go back and look again and say, "Is this really what
we want" because when the time comes it is too late.
Q550 Chairman: Just on a point of
principle, as you know the draft Bill puts into statute the current
and common law position but supposing those provisions were not
in the Bill, what would the effect be, to stay with the common
law as it is now?
Professor Williams: We would stay
with the common law.
Q551 Chairman: Would that be worse
than the position now?
Professor Williams: This is such
a sensitive area that I think, insofar as legislation can provide
clarity, we need the clarity of legislation rather than common
law. That takes us back to the first discussion we had, that common
law is okay but increasingly this is becoming an important issue
Q552 Chairman: On the other point
about the changing knowledge of medical treatment, if an advance
directive said something like "Based on the treatments known
to me at this time I wish to refuse treatment", it would
then mean that if treatments changed the directive would not be
based on those new treatments.
Professor Williams: Yes, and you
would tie it into day one, as it were, the day you signed it.
That is possible, although who knows what the person knew on that
particular day. That may be a practical problem, an evidential
Chairman: If I can thank you on behalf
of the Committee for being so patient and waiting for a long time
but we were interrupted by divisions which are outside our control.
You have been extremely helpful. If there are any further points
you would like to make we would be happy to receive them in writing.
Thank you very much.