75.Memorandum from Dr Gillian Craig (MIB
Clause 4. Best Interests
The criteria used to consider "best interest"
are far too vague. Lord Brandon's "principle of necessity"
has proved its worth and should not be lightly discarded. A treatment
should be considered "necessary" "if, but only
if, it is carried out to save their lives, or to ensure improvement
or prevent deterioration in their physical or mental well-being."
[Reference Re F(1990)2ACI]
The principle of necessity has proved valuable
to doctors faced with the management of patients with mental incapacity,
for example those with severe dementia or strokes, who are unable
to give informed consent about necessary care. It was also used
to good effect by a Judge in Australia who intervened to save
the life of a 37 year old man, who languished untreated and in
danger of death in a hospital in Sydney. (Northridge v Central
Sydney Area Health Service  NSWSC 1241 (29 December 2000)
Parliament should not ignore the views of the
House of Lord's Select Committee on Medical Ethics of 1994. They
considered that life-prolonging fluids and nutrition should not
be withheld unless the means of administration is evidently burdensome
to the patient. Yet in hospitals all over the UK elderly patients
are having such measures withheld. It is in no one's best interest
to be starved to death.
Mrs X was an elderly lady who had suffered
a stroke. She was admitted to hospital semi-conscious. Within
days of admission a "not for resuscitation order" was
issued against the wishes of her son. She was given subcutaneous
fluids for some days. On the 12th day a nasogastric tube was passed,
through which she was given virtually nothing but tap-water until
she died, grossly emaciated, seven and a half weeks after admission.
This calculated negligence was considered to be in her best interest!
Clause 6. General Authority
(3a) This should be altered to permit a person
"to reimburse himself out of money in P's possession, with
the approval of a relative or other responsible person."
(Unless the words in italics are added, a person could incur expenditure
and help themselves to an incapacitated person's money without
so much as a "by your leave."
This clause should be clarified to make provision
for appeal to the Court of Protection in the event of any serious
dispute about decisions made by the persons mentioned in 2a, and
2b. Therefore I suggest that you add a third point 2c as follows
(c) In the event of serious concern about
decisions made in sections (a) or (b) above, a ruling should be
sought from a court.
Clause 16(4a and b)
I note that the proposed Court of Protection
will operate on the understanding that a decision by the Court
is preferable to the appointment of a deputy, and that the powers
of any such deputy "should be as limited in scope and duration
as possible." This surely throws into question the whole
issue of proxy-decision makers! Yet under the terms of the draft
Bill, it is proposed to permit members of the public to appoint
deputies (ie proxy decision-makers) with power to make crucial
life and death decisions on their behalf. This makes little sense!
The wording should be clarified. Does "a
treatment" include "life-prolonging/life-saving treatment"
(as specified in clause 10 (4 a and b)?
Clause 24. Validity and Application of Advance
Section 2 invites chaos and muddle! How can
the Government possibly argue that advance decisions are legally
binding and must be heeded when there are so many situations that
undermine their validity? Advance directives should be taken as
indicators of a patient's wishes, not as hard and fast rules.
They should not be enshrined in statute law.
Busy medical practitioners simply do not have
the time to consider the legal validity of an advance directive,
and may not know of its existence, when faced with urgent life
and death situations. Many such crises have to be dealt with in
the absence of any information about the patient. (For further
discussion see Craig GM. Catholic Medical Quarterly of Feb 1999.)
I suggest that the point made in clause 25(5)
should also appear as clause 24(5).
Clause 30. Codes of Practice Powers of the Lord
The Bill as drafted gives far too great power
to the Lord Chancellor. He/she is to be allowed to revise codes
of practice as thought fit. If changes are made at frequent intervals
it will be extremely difficult for people to comply with a duty
[see clause 30 (6)] to have regard for "any relevant code
of practice" It is hard enough for professionals to keep
pace with all the codes of practice and guidelines in circulation,
some of which appear to contravene the European Convention on
Human Rights. It will be impossible for ordinary members of the
public to be aware of relevant codes of practice. This is yet
another reason for suggesting that the final word on life and
death decisions should not be given to unqualified proxy decision-makers.
Such people should be involved in an advisory capacity only; good
practice should ensure that their views are heard in consultation
with those of others in the caring team.
Clause 40. Application to the Court of Protection
(1) Access is too restricted. Any person should
be permitted to apply to the Court of Protection on behalf of
an adult with mental incapacity, just as any person can refer
a case to the Coroner. In the USA and Australia, necessary court
cases have arisen when relatives disagree with decisions made
proxy health care decision-makersfor example a spouse acting
as the legal guardian. Where a person has no close relatives,
a concerned friend or professional should be allowed to apply
to the Court for advice.
A new clause should be added to permit application
to the Court of Protection by any concerned health care professional,
relative, close friend or other significant party who disagrees
with decisions made about P by significant others.
Clause 41. Court of Protection Rules
The element of secrecy (41:2g) is potentially
sinister. Some record should be kept of all "end-of-life"
decisions made by the Court, whether or not there is a hearing.
The statistics should be made public. Without this we will never
know how many applications (and people) are "disposed of"
with or without a hearing. [see 41; (2e)]
Clause 43. Rights of Appeal
The public need to be assured that there will
be a right to appeal to the Court of Appeal without undue restriction.
There should be a Right of Appeal to the Court in any situation
where a person's life is put in danger by decisions made by health
care professionals or proxy decision-makers. There will inevitably
be some conflict between such parties in the years ahead. The
Court should be the final arbiter.