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 anyonedonee or deputywould
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.