Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

17.Further memorandum from the Medical Ethics Alliance (MIB 1191)

  Thank you for inviting the Medical Ethics Alliance to give oral evidence.

  The Alliance was formed four years ago to promote discussion inside and outside the medical profession on medical ethics. It is a coalition of doctors from various faiths. It looks to the Declaration of Geneva 1948 of the World Medical Association following the Nuremberg trials. The Alliance studies contemporary medical ethical problems at conferences and through publications. We seek common ground amongst doctors of faith and Hippocratic inspiration. Some of the issues in the draft bill are of great concern to us.

  The Alliance was formed after the publication of the BMA document "Withholding and Withdrawing Life-prolonging Medical Treatment" which laid down criteria for omitting food and fluids administered to stroke victims and others who were not dying and still sentient. This document has never been endorsed by the membership of the BMA. We believe that there should be a presumption in favour of the preservation of life and a humane duty to provide sustenance, if necessary with medical assistance to people with swallowing difficulties. This presumption would yield only if such assistance was unable to achieve its purpose or was excessively burdensome or disproportionate in itself or refused by a competent patient.

  The lack of precise definition of "best interests" in the Bill is a serious omission. It can never be in the best interests of a patient to be killed but the scope which this Bill gives for withholding nutrition and hydration in the "best interests" of patients lacking capacity is deeply worrying. It is possible to harm or even kill patients by withholding what they need as well as by giving them what they don't need. We disagree with the narrow definition of euthanasia adopted by some as "a deliberate intervention undertaken with the express intention of ending a life". The observations made by many that this Bill could open the way to euthanasia by omission are unfortunately correct.

  Another area of concern to us is the medical management of patients who attempt suicide. There would be major difficulties for medical staff in emergency departments if patients who are mentally ill refuse treatment by means of an advance directive. Not only would these difficulties be medico-legal but they could result in morbidity as well as mortality. Research has shown that most suicidal patients welcome their survival after appropriate treatment. We would respectfully direct the committee's attention to the Declaration of Bali of the World Medical Association, which called for the resuscitation of those who attempt suicide.

  Thus we have severe reservations about advance directives. These rarely if ever come close to the standard of a contemporaneous consent or refusal of treatment. Noting that the Adults with Incapacity (Scotland) Act 2002 did not legislate for legally binding advance directives, we ask why such a controversial measure is included? The Draft Bill states that the document "Making Decisions" forms the foundations of this Bill. However "Making Decisions" considered that the issue of Advance Directives would not be taken forward in the light of the public's response. Would not this sensitive subject be best left to the courts as at present and as the House of Lords Select Committee on Medical Ethics recommended in 1994?

  Another serious concern is the exercise of lasting powers of attorney or general authority without legal safeguards so that donees can override medical opinion unreasonably. Conflicts of interest will arise where inheritance is involved. We think this amounts to an exercise of power without accountability. We note at 16(4)(a) that a court-appointed deputy would have limited powers, but not so donees. We do not understand this. The Scottish Act provides for second medical opinions and the right of access to the Court of Sessions to resolve disputes. We think an effective and funded system of appeal should be included in the Bill.

  We think 24(2)(b) and (c) are a recipe for muddle and betray little understanding of the working of busy acute medical facilities. At 30(6) we hope that anyone—donee or deputy—would have regard to the Lord Chancellor's code of practice which we are sure should put health benefits for patients first and not subjective considerations or legal process.

  We welcome the intention of the Bill to preserve and enhance patients' and carers' welfare and freedom but encourage the committee to do this whilst safeguarding the vulnerable.

October 2003

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