Joint Committee on the Draft Mental Incapacity Bill Written Evidence

75.Memorandum from Dr Gillian Craig (MIB 726)

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 [2000] 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.

Case Report

  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."

Clause 7(2)

  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!

Clause 17(1d)

  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 Decisions

  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 Chancellor

  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-makers—for 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.

August 2003

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