Thursday, October 04, 2007

Legal Implications of the Mental Capacity Act - in force this week

Mental Capacity News Update – Concern for Christians over safeguards for the elderly and vulnerable

The 1st of October has seen the coming into force of the Mental Capacity Act 2005. Dignity in Dying, the pro-euthanasia lobby group, saw this as –“a great day for patient choice!” In reality it was a sad day for many elderly and vulnerable people whose lives could be put at risk. In our view the Act makes it far too simple to make a “Living will”, otherwise known as an advanced decision. Advanced decisions are written in anticipation of a time when you cannot make your own decisions, so that after you become incapacitated your wishes are already known. They allow people to refuse medical treatment in advance, including life sustaining treatment. This can include the refusal of water and food by tubes, which is regarded as medical treatment. Without the provision of such treatment some patients will die, not of their illness, but of thirst. For this reason, many believe the provision of nutrition and hydration should be seen not as medical treatment, but as basic care which cannot be withdrawn.

The Act has been referred to as “Back- door Euthanasia”. Elspeth Chowdharay-Best of the Alert pressure group is quoted as saying : "People sign living wills thinking they will die a little bit earlier…….But what this law does not say, and most people do not know, is that they will be condemning themselves to die terribly of thirst." (Daily Mail, 28 September)
http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=484604&in_page_id=1766&ito=1490

“Earlier this month, the Roman Catholic Church said Doctors had a moral obligation to provide food and fluid to patients in a vegetative state.” (Daily Mail, 24 September 2007)
http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=483473&in_page_id=1770

As well as Living Wills, the Act introduces Lasting Powers of Attorney, or LPAs. These are legal documents which allow others, such as a friend or relative, authority to make decisions on your behalf. This individual is then referred to as your ‘Attorney’. Your attorney can make decisions not only about your financial affairs, but about your personal welfare, including what medical treatment you should receive. It is possible to place restrictions or conditions on the authority your Attorney can have. This can include the authority to give or refuse consent to life sustaining treatments.


Dr Philip Howard, a London gastroenterology hospital consultant, was quoted as saying: "The law will lead to real difficulties when a family member has the power to order that someone should die while at the same time they are a beneficiary of the will… Law governing wills and property makes it very difficult to influence someone to make a will in your favour - the Mental Capacity Act has nothing like that sort of safeguard." (Daily Mail, 28 September)
http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=484604&in_page_id=1766&ito=1490


The Code of Practice says Doctors or Healthcare professionals do not have to act against their conscience for living wills and can transfer care to another healthcare professional. It is vitally important that those who consciously object to stopping life sustaining treatment (for religious or other reasons) for living wills are aware of this.

Unlike Living wills, which desperately need more formal safeguards to protect the elderly and vulnerable, the LPAs do at least have the safeguard that the form has to include a certificate of understanding by an independent third party which confirms that “Nobody used fraud or undue pressure to trick or force the donor into making the LPA”. The lack of safeguards for living wills is of huge concern because of the watertight enforcement of such advance decisions.

One of the main principles in the Act is that any act done or decision made, for, or on behalf of a person who lacks capacity must be done, or made, in his best interests. This best interest principle is fully detailed in the LPA form. What is missing in the form is any description of how this best interest principle theory is carried into actual practice by Attorneys.

One of the key safeguards in the Act, to help Attorneys and those making decisions to work out what’s in someone’s best interests in practice, is a checklist. However, this important checklist is sadly missing from the LPA form. This is surprising since during the passage of the bill the Government recognised this as a key safeguard when concern over the withdrawal of water and food treatment was discussed.

One of these key safeguards was that if the decision concerns life sustaining treatment, it must not be motivated in any way by a desire to bring about the person’s death. However, this vital and potentially life-saving statement is missing. Dealing with this in the initial guide for Attorneys taking on the role is insufficient. It will also be difficult for attorneys to practically have regard to the 302 page code of practice. The LPA forms will be readily accessible years later when such decisions are being taken, so it’s vitally important to include this information in the form itself. Neither is there a statement of understanding by the Attorney in Part C of the LPA form that the Attorney understands their best interest checklist duties.

There is also no sentence in the LPA – Personal Welfare form itself to make it clear that medical treatment includes the withdrawal of tubes for food and water. This was in the original draft LPA form. It is now mentioned in the guide for the people who want to make a LPA, but surprisingly not in the guide for the Attorney.

We believe the safeguards for both Living wills and Lasting powers of Attorney are insufficient in the Act and should be of major concern to Christians who are concerned for the elderly and vulnerable. It is also of concern to Doctors and healthcare staff, not only those who are religious, but those who work tirelessly to preserve and sustain life.

For further information:
Andrea Minichiello Williams LCF Public Policy Officer: 0771 2591164
http://www.lawcf.org
http://www.christianconcernforournation.co.uk

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