Joint Ethico-Medical Committee
The Catholic Union of Great Britain
Guild of Catholic Doctors
RESPONSE TO "MAKING DECISIONS" PROPOSALS ON MAKING DECISIONS OF BEHALF OF MENTALLY INCAPACITATED ADULTS
[In October 1999 the government issued a policy statement ("Making Decisions") which flowed from the Consultation Paper Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults dated December 1997 (Cm 3803), and the Law Commissions 1995 report Mental Incapacity. Our responses to these earlier consultations are on this website - Response to 'Who Decides, and Response to Law Commision 1995 report. Below we now make our comments on the government's policy statement]
The Catholic Union of Great Britain and the Guild of Catholic Doctors are glad to have an opportunity to respond top the Governments policy statement "Making Decisions". In particular we welcome the decision not to legislate for Advance Statements. We also support the presumption in favour of competence where health decisions are made by patients unless it is established that they have lost or never were competent.
We express, however, the following reservations about some of the other proposals.
Re: Chapter 2 - Continuing Powers of Attorney (C.P.A.) We have reservations about health attorneys. If they are legislated for there should be a specific provision that persons exercising them should never use their powers in such a way as to intentionally bring about the death of the incompetent person, or to deliberately cause them harm. They must be directly held accountable for their decisions. In "Making Decisions" it is clear that the person exercising C.P.A. is not required to follow medical advice and indeed they may require a doctor to embark on a course of action that is contrary to the incompetent persons best interests and good medical practise. Power must be balanced by responsibility as it is in the professional life of all medical personnel. Indeed an invidious position might arise whereby a doctor acting in accordance with good medical practice might be guilty of criminal assault if he goes against the attorneys wishes.
The proposal for Continuing Power of Attorney fails to recognise that the health attorney may, and indeed is likely to be a financial beneficiary under the terms of the incompetent persons will. The attorney therefore will have a conflict of interests when making health and life decisions. We are surprised that senior law authorities like the Lord Chancellor's Department and the Law Commission have not addressed this. A general statement that persons exercising C.P.A. must act reasonably is wholly inadequate.
Attorneys cannot have responsibility without accountability i.e.
C.P.A.s must not act or fail to act in such a way so as to cause harm or death.
They must not take financial advantage of the incompetent person.
They must act in ways that take account of good medical practise to promote and safeguard the mental and physical well being of the incompetent person.
They must accept a duty of care towards the incompetent person.
We are concerned that the health attorney is something of a legal fiction. It seeks to create in another the person who is incompetent. The attorney however is not that person, makes decisions without suffering their consequences and may in fact gain from their decisions. There is some evidence to show that the interpretations of proxies may have a strong subjective element.
In our submission to the earlier Law Commission document and later "Who Decides" we defined best interests as the preservation of life, relief of pain and suffering and the preservation or alleviation of disabilities, it is not synonymous with wishes.
Regarding decisions to withdraw assisted food and fluids (Chapter 2 at 2.6) those necessities of life, we find "Making Decisions" seriously deficient and frankly alarming. Death by dehydration should not be required by law. Furthermore, no attorney should be allowed to refuse sustenance, given if necessary with assistance. Not withstanding the Bland Judgement of 1993, which "Making Decisions" seeks to build upon, we would point out that the over whelming majority of clinicians and carers being responsible for P.V.S. patients have not taken this course. Since 1993 only 18 out of thousands of cases have come into Court. The proposal in "Making Decisions" that the Court of Protection working through managers and making such decisions on food and fluids, appears to us to be an attempt to institutionalise the Bland Judgement and is in conflict with the Government's often repeated claims that it is opposed to euthanasia.
The Bland Judgement itself was widely seen as leaving the law "misshapen" in that it permitted intentional killing by omission but not by commission. Advocates of euthanasia have drawn attention to this.
"My suspicion is that the routes taken by Courts have been tailored so they cannot be seen as endorsing voluntary euthanasia ...... yet, arguably, the conclusion must be that the Courts are endorsing a form of non-voluntary euthanasia". (Prof. Sheila McLean co-author of the draft assisted suicide bill cf Hansard 28.0 1.00 p.688)
Summary of our Views
An attempt to improve on the current practise of making health decisions for incompetent persons on the basis of necessity or their best interests, any new policy should strengthen and not weaken the protection given to vulnerable persons. Some of the policy decisions in "Making Decisions" fail in this respect
Dr. Ian Jessiman MRCP., KSG
Vice President Catholic Union of Great Britain
Patrick Coyle FRCS., KCSG
Master, Guild of Catholic Doctors
Dr. A.P. Cole JP., KSG., FRCP
Chairman, Joint Ethico Medical Committee
Date: December 1999