Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 280-281)


8 OCTOBER 2003

  Q280  Mr Burstow: It follows on from this. Given the current state of the law in respect of withholding the withdrawal of treatment materially speaking will this Bill make the process of making those decisions simpler in terms of enabling a decision to be made more quickly or will it make it more difficult for decisions of this sort to be made from the point of view of the clinician?

  Dr Nathanson: I do not believe this will affect those decisions at all. The decisions that will be affected, which is much welcomed, is that it will be the patient's view on treatment decisions and treatment choices. I think that is much more welcome. We get some elements of that now through those patients who have completed advanced directives but this will enlarge that process. In that sense decisions that are made will be on a better legal basis but more importantly than that all decisions that are made about choices between treatments will be based on what the patient wants.

  Q281  Mrs Browning: On the face of the Bill there appears to be no limitations placed on the types of decisions made by carers under the general authority and it is relegated to the Code of Practice. You have expressed some concerns about that, I wonder if you would like to give us some examples as to why you think this may come into conflict with your own areas of authority in terms of the doctor taking decisions for the patient?

  Dr Wilks: I think at the moment partly because there is a certain fuzziness between those different powers and responsibility under general authority because one potentially comes into conflict with another. It is something that the Bill needs to be a little more clear about the limits and the specifics of the different types of authority otherwise I think doctors may feel they are not absolutely sure to what extent their general authority allows the doctor to do things in the patient's best interests that they commonly normally do without any restriction now. That is a very important principle. On the second point to your question, the difficulty of resolving disputes about what the doctor might feel either was best or had authority to do and the existence of any other evidence, such as an LPA, such as an advanced decision is something that needs to be subjected to some kind of resolution process because at the moment we have a situation where that might go straight to court. In most cases if you go to court to reach a medical decision it is usually a sign of the failure of the process. I think we need to see more, if I may say so, in the codes about how these disputes are resolved and a bit more distinction between the types of authority.

  Chairman: The only areas we have not covered are dispute resolutions and resource, would you be kind enough to write to us on those issues and any other remarks you wish to make. It has been a very, very helpful session.

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