101.Memorandum from the Catenian Association
A. The present Bill goes further than the
comparable legislation in Scotland (the Adults with Incapacity
Scotland Act) by placing Advance Decisions on a statutory basis.
Advance Decisions should not be given statutory force.
B. There is no clear duty of care placed
upon the donees of Lasting Power of Attorney. The provision of
a (criminal) sanction in the event of wilful neglect seems to
us to afford insufficient protection for the incapacitated person
especially with regards to the refusal of medical treatment, including
the provision of food and fluids, which might bring about the
death of the patient
C. There are insufficient safeguards for
preventing financial abuse and conflicts of interest between attorney
and patient. We propose that the attorneys, whilst maintaining
their roles in financial and welfare matters, should not be empowered
to make medical decisions. These should remain with health care
D. Nevertheless, the rights of attorneys
should include the right to be consulted about treatment as a
mark of good practice. The attorneys should therefore be statutory
consultees rather than proxy-decision makers in health care matters.
This would not only remove a heavy burden of personal and moral
responsibility from attorneys, but maintain the current legal
liability with health care professionals including the right of
patients to due compensation for negligent medical management.
If attorneys were to make health care decisions there should be
a statutory duty of care on appeals procedures in the event of
disputes. In cases of disagreement between doctor and attorney
there should first be recourse to a second medical opinion procedure
rather than to the courts, which would be time consuming, expensive
and practically cumbersome.
E. The Bill should include a definition
of basic medical and nursing care which cannot be refused by an
attorney, court appointed deputy or advance decision. The definition
of basic care should include the provision of food and fluids.
Difficulties arise when treatment refusals are suicidal motivated
or where they are made by attorneys with a financial conflict
of interest. The Bill must make it clear that suicidal motivated
refusals of treatment eg in the form of a suicide note forbidding
resuscitation ought not to be followed and might involve aiding
and abetting a suicide. The deliberate withdrawal of ordinary
treatment such as insulin or the withholding of food and fluids
must never be done with the purpose of bringing about the death
of the patient. Any act or omission done with the intention of
bringing about the death of a patient should remain unlawful.
1. The Catenian Association is an association
of practising Catholic business and professional men (including
in particular many lawyers and doctors), most of whom are married
and have families. Membership in the United Kingdom numbers about
9,500 and thus is one of the largest Catholic bodies in the country.
2. This submission will be restricted to
those matters included in the draft Bill, which affect the Catholic
viewpoint. The Bill as a whole codifies a substantial number of
matters relating to those who suffer incapacity in relation to
welfare and financial matters. It also clarifies the law for carers
by introducing a statutory general authority to act reasonably
in the best interests of the incapacitated. On the other hand,
there are sections dealing with "advance decisions"
and proxy-decision making which are of concern to us.
3. At present no-one can give legally binding
consent on behalf of a mentally incapacitated adult patient in
relation to health care or welfare matters. However, the contingent
necessity to provide treatment and care for the incapacitated
has been recognised in law as the "principle of necessity"
following the case of Re F in 1990 and subsequently by several
other cases. We are not convinced that there is a need for lasting
powers of attorney in relation to health care matters because
of the developments that have taken place in common law. Indeed,
we see potential problems if they are placed on a statutory basis.
The views of the next of kin or relative can be extremely useful
to health care professionals and ought to be sought as a part
of good medical practice.
4. However, problems arise when the attorney
is not simply bearing witness to the would-be wishes of the patient
but rather is making decisions on the attorney's own behalf. There
can be no ethical justification for accepting the refusal of treatment
of an attorney when there is reason to believe that the attorney's
views do not reflect those of the patient or where there is a
financial conflict of interest between patient and attorney or
where the medical advisers know that medical treatment would be
beneficial to the health of the patient. For example, a refusal
of treatment by an attorney might lead to the death of a patient
obviating the need for expensive residential or nursing home care
and/or releasing the estate of the patient. There would cleariy
be a conflict of interests if the attorney were to be a beneficiary
of the will of the patient. Since attorneys are likely to be appointed
from among close relatives (especially children of the donor of
the power) this is frequently going to be the case.
5. Decisions made by donees of Lasting Powers
of Attorney (LPA) will cover financial, welfare and health care
issues and will be wide-ranging. We do not believe that there
are sufficient safeguards in the Bill to prevent financial abuses.
Indeed, in the Commentary and Explanatory notes (p 45) it was
pointed out that Master Lush, Master of the Court of Protection,
in 1998 estimated that financial abuse may occur in as many as
10-15 per cent of EPA cases that are registered with the Public
6. The Bill would not prevent the donee
of LPA from acting contrary to the medical best interests of the
patient. The decision of the donee of LPA will override that of
the doctor or relatives. "Subsection (2) clarifies that the
general authority will be " trumped" by a decision of
a donee of a lasting power of attorney or of a deputy." (Commentary
and Explanatory notes p. 24). The donee of LPA does not have a
specified duty of care. Therefore, the standards required of the
attorney may fall below those of a doctor or nurse who are subject
to claims in medical negligence. There is no provision for patients
to receive compensation for wrongful decisions made by LPA attorneys
that are contrary to good medical practice and judgement. The
only safeguard for the patient is in the case of ill-treatment
or wilful neglect which would be a criminal offence.
7. We therefore propose that the donee of
a lasting power of attorney should act as a statutory consultee
who ought to be consulted whenever medical decisions are made
as a mark of good medical practice but should not be empowered
to consent to or refuse treatment or care.
8. We believe that the duty of care in the
management of incapacitated people would remain with health care
professionals who ought to consult the patients' nearest relatives,
carers and attorney as a matter of good practice. Involvement
of the attorney should be regarded as evidence of acting reasonably
under the circumstances. If attorneys are to be empowered to make
medical decisions, they should be under a duty of care in civil
law to the patient for wrongful decisions. In Scotland, according
to the Regulation of the Adults with Incapacity Scotland Act (2000),
welfare attorneys have a duty of care under common law. "An
attorney, guardian or other person acting under the Act is held
at common law to owe a duty of care to the adult with incapacity.
They must act with due skill and care in exercising the power
they have been given in relation to the adult".
9. There is no provision in the Bill for
a second medical opinion procedure in the case of disputes between
the attorney and doctor. In Scotland, disputes are first referred
to a second opinion doctor. If they cannot be resolved then interested
parties can apply to the Court of Session to determine if the
treatment may proceed. There is no such provision in the current
Bill in which disputes would be referred directly to the Court.
If this is done we believe it would be time consuming and expensive.
10. Although there is a checklist of factors
to which regard is to be had in considering the question of best
interests (Clause 4 (2) of the Bill), this does not appear to
us to be exhaustive or exclusive, for example, there is no mention
of medical best interests. These interests, which are decided
by the patient's doctor, should be taken into account before health
care decisions are taken. Such decisions should be made after
assessing the condition and circumstances of a patient and in
addition have regard to the other factors referred to in clause
4. We consider that it is essential for medical need to be taken
into account before a patient's " best interests" can
11. The definition is wide and there is
no consideration in the Bill of basic or nursing care. Basic care
would include those things which are required in both health and
disease to sustain life
warmth, shelter, clothing, companionship,
food and fluids and the provision of ordinary medical, nursing
and palliative care. It should be unlawful to deny a patient basic
care through an advance decision or a decision by an attorney
or court appointed deputy.
12. The validity and applicability of advance
decisions has largely been defined by the case of Re AK which
seems to us to be both practical and ethically acceptable. According
to this case nothing should be done that is contrary to the known
views of a patient when of sound mind provided that care is exercised
to "ensure that such anticipatory declarations of wishes
still represent the wishes of the patient. Care must be taken
to investigate how long ago the expression of wishes was made.
Care must be taken to investigate with what knowledge the expression
of wishes was made. All the circumstances in which the expression
of wishes was given will of course have to be investigated."
Re: AK (High Court of Justice, Family Division: Hughes J. (2000)
58 B.M.L.R. 151; [200111 FLR 129)
13. We are concerned that the Bill would
allow the withdrawal of life sustaining food and fluids from vulnerable
incapacitated patients. Thus these sections seem to us to allow
euthanasia, which is contrary to Government policy as we understand
it and is equally contrary to the teaching of the Catholic Church.
Paragraphs 2277 to 2279 of the Catechism of the Catholic Church
are set out below:
Paragraph 2277 Whatever its motives and means,
direct euthanasia consists in putting an end to the lives of handicapped,
sick or dying persons. It is morally unacceptable.
Thus an act or omission which, of itself or
by intention, causes death in order to eliminate suffering constitutes
a murder gravely contrary to the dignity of the human person and
to the respect due to the living God, his Creator. The error of
judgment into which one can fall in good faith does not change
the nature of this murderous act, which must always be forbidden
Paragraph 2278 Discontinuing medical procedures
that are burdensome, dangemus, extraordinary, or disproportionate
to the expected outcome can be legitimate; it is the refusal of
" over zealous" treatment. Here one does not will to
cause death; one's inability to impede it is merely accepted.
The decisions should be made by the patient if he is competent
and able or, if not, by those legally entitled to act for the
patient, whose reasonable will and legitimate interests must always
Paragraph 2279 Even if death is thought imminent,
the ordinary care owed to a sick person cannot be legitimately
interrupted. The use of painkillers to alleviate the sufferings
of the dying, even at the risk of shortening their days, can be
morally in conformity with human dignity if death is not willed
as either an end or a means, but only foreseen and tolerated as
inevitable. Palliative care is a special form of disinterested
charity. As such it should be encouraged.
14. These paragraphs, which conform fully
with Article 2 of the European Convention on Human Rights ("Everyone's
life shall be protected by law. No-one shall be deprived of life
intentionally" ), highlight our concerns about the contents
of this draft Bill. The Bill as it currently stands would permit
the withdrawal of food and fluids with the result that patients
would die. In our view this inhuman practice should be abolished
in the Bill.