22.Supplementary memorandum from the Lord
Habgood (MIB 1206)
Q1. Would the
inclusion of a legal definition of "best interests"
clarify the legislative intent of the Draft Bill or would such
a definition be unduly static and inflexible for decision-makers?
Insofar as "best interests" are a
matter for clinical judgment, a legal definition would probably
be unworkable. Clinical judgment may be usefully informed, however,
by the concept of "medical necessity", ie "treatment
carried out to save life, or to ensure improvement or prevent
deterioration in a patient's physical or mental well-being".
This is likely to be less subjective than "best interests",
and less closely linked with patient autonomy which, in the circumstances,
is likely to be a difficult criterion to apply.
Q2. How should the individual's clinical
best interests be balanced against their wider interests?
It depends on what "wider interests"
you have in mind. Wishes, values etc are relevant. But while the
administration of an individual's estate is clearly an "interest",
to balance it against the clinical judgment of "best interests"
could lead to abuse. eg Should P be kept alive by artificial means
in order to meet the seven year criterion for tax-free gifts?
Q3. In your view, should the General Authority
be restricted to particular categories of medical interventions?
If so, what restrictions would be appropriate?
Financial expenditure using P's resources should
be subject to some external check.
Q4. Do the provisions contained within the
Draft Bill enable people to be sure that their beliefs with regard
to treatment will be respected if they lose capacity?
What beliefs are relevant? Would a belief in
euthanasia count? hope not. Current rules about confidentiality
can make it difficult for chaplains and other religious advisers
to discover when issues concerning belief may be relevant to treatment
or care. Ideally an appropriate religious or ethical representative
should be part of the medical team responsible for making major
decisions about P.
Q5. Should the Draft Bill specify that a
person acting on behalf of a person with incapacity should have
regard to their values as well as their "wishes and feelings"
when deciding what is in their best interests?
Yes. But insofar as the question implies a proxy
decision-maker, I would caution against this for reasons set out
in the 1994 report.
Q6. As in our society people choose to adhere
to different values and beliefs, do you consider that the Draft
Bill achieves the right balance between respect for individual
diversity and respect for life? If not, what would you change?
Diversity is to be respected, but the law necessarily
sets limits because it depends on, and has to uphold, general
social attitudes as well as individual liberties. Thus the fundamental
reason why euthanasia is, and should remain, illegal is that to
legalise it would in the long run generate a profound, and potentially
harmful, change in social attitudes towards the sick, the incapacitated,
and the elderly. Belief in euthanasia does not give the right
to demand it. In the absence of any change in the law, it is important
not to allow the present law to be circumvented. Clauses 23 (1
b) and 24 (5) could have this effect in cases where the lack of
capacity is not thought to be permanent.
Q7. In your view does the Draft Bill distinguish
between ending life by omission and not aiming to prolong life
by inappropriate means? If not, what safeguards would you like
There are serious and legitimate worries as
to whether nutrition and hydration are ethically equivalent to
the withdrawal of treatment. The Bland case set an unfortunate
precedent. Since he was both incapacitated and completely unconscious
the distinction was for him irrelevant. But it is not irrelevant
for those who, though incapacitated, retain a degree of consciousness.
Q8. Will giving advance refusals a statutory
basis risk the welfare of patients? If so, how might the Draft
Bill be amended to avoid this?
There are inherent problems in specifying in
precisely in advance what conditions and circumstances should
be sufficient to bring a refusal of treatment into effect. This
is one reason why the name Advance Directive is to be preferred
to Advance Decision. A decision is the end of a process, whereas
a directive can be an important element within it. To assume that
a decision can be made, and must be adhered to, before the precise
circumstances can be known, must be to put the welfare of patients
at risk. A directive, on the other hand, should be seen as giving
valuable guidance for the exercise of proper clinical judgment,
as well as protecting doctors against charges of negligence.
Q9. Should the Draft Bill stipulate that
advance decisions must be made in writing?
Q10. In your view are the safeguards in the
Draft Bill sufficient to protect individuals who suffer from fluctuating
levels of capacity?
No. There needs to be a reasonably firm prognosis
before any decision is madeand this may take time (at least
a year in the case of PVS). This is a further reason why clinical
judgment is to be preferred over the legal implementation of advance
Q11. The Draft Bill puts into statute the
current common law position as regards advance refusals. Would
denying capable individuals the right to make statutorily enforceable
advance decisions to refuse treatment amount to a form of discrimination
against people who later become incapacitated?
No. A degree of flexibility is necessary for
the protection of patients, given that medicine is not an exact
Q12. Do you envisage that there are any medical
circumstances when the wishes expressed in a valid advance directive
(or a person's wishes expressed through a donee acting under an
LPA) might reasonably not be followed by the treating doctor?
If so, can you give examples?
When there is real uncertainty about the prognosis.
eg Is it PVS or coma? What degree of recovery from a serious stroke
is likely? How quickly will Altzheimer's advance? What are the
chances of new treatments being available in time to make a difference?
Q13. Should the Draft Bill exclude "basic
care" or a "minimal level of care" from its procedures
and mechanisms? If so, how should "basic care" or a
"minimal level of care" be defined?
Basic care is owed to everyone, whether or not
they want to die. This must include paying respect to P's body
by keeping it clean, as comfortable as possible, and not subjecting
it to unnecessary indignities. On nutrition and hydration, see
7. Some particularly invasive forms might be classed as "treatment"
and, to that extent, not part of basic care. There is a case for
not including antibiotics as a regular part of basic care. My
own view is that this is what should have been done in the Bland
Q14. Do all the witnesses agree with the
Catholic Bishops' Conference view that the Draft Bill currently
contains insufficient safeguards against donees who fail to carry
out their responsibilities properly? If so, how should these safeguards
Clause 22 seems to deal satisfactorily with
Q15. Should Local Authorities be given duties
to investigate possible abuse taking place under the provisions
of the Bill? Would this approach help to address any concerns
you might have about the exploitation of vulnerable people?
Presumably those with major long-term mental
incapacity are already known to Health Visitors and Social Services.
If not, surely they should be.