Joint Committee on the Draft Mental Incapacity Bill Written Evidence

94.Memorandum from Dr Charles O'Donell (MIB 320)

  Thank you for offering me the opportunity to express my views regarding the aforementioned Act of Parliament.

  As a doctor working in critical care I am frequently involved in end of life decision-making. This includes withdrawing artificial ventilation, terminating attempts at cardio-pulmonary resuscitation and refusing entry into Intensive Care. The proposal to offer Continuing Power of Attorney to somebody who is not medically qualified and dealing with the particular case in hand concerns me greatly. Such a proxy decision maker may be influenced in his or her decision making process by factors that have little or no bearing on the overall best interests of the patient.

  One commonly meets relatives who are overwhelmed by the complexity and perceived burden of medical therapies who may therefore if given the casting vote opt for treatment withdrawal based (albeit in good faith) on false perceptions of the overall benefit-burden ratio.

  Sadly what is even more frightening about the Lasting Power of Attorney proposal is that it naively assumes that the attorney is incorruptible! If an individual may benefit financially from a patient's death the true best interests of the patient are compromised

  It is vital that in any just society the law should protect the most vulnerable as effectively as possible. A senior clinician taking regard of the valued opinions of other healthcare professionals and the relatives of the incapacitated person who is ultimately accountable to the courts is the best way to achieve this goal.

  Undoubtedly, patient autonomy is one of the important factors to be taken into the equation when making end of life decisions. It is a paradox that the advocates of this Act of Parliament see it as a means to protect autonomy whilst in fact it runs the serious risk of threatening this right for the most vulnerable members of our society. If the more privileged members of society, I guess like you and I, have to tolerate a slightly perceived or indeed actual diminution of our right to autonomy in order to protect the common good then that is to my mind true justice.

  The common good ie that situation that ensures the rights of the most vulnerable even at the expense of the more fortunate should be the guiding maxim of any law relating to the incapacitated.

  Once again thank you for the opportunity to express my view. I hope the draft will be amended accordingly.

August 2003

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