From Debbie! Mental Capacity Bill http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semsimple&STEMMER=en&WORDS=jehovah&ALL=&ANY=&PHRASE=&CATEGORIES=&SIMPLE=jehovah&SPEAKER=&COLOUR=Red&STYLE=s&ANCHOR=muscat_highlighter_first_match&URL=/pa/cm200304/cmstand/a/st041028/am/41028s05.htm#muscat_highlighter_first_match
| Mental Capacity Bill |
Paul Holmes: To pursue that point, the Alzheimer's Society emphasises that the person making an advance directive or living will should revisit it every few years and update it, as they would an ordinary will. That makes obvious sense with either an ordinary legal will or with an advance directive. However, does the hon. Lady accept that if I were to make that living will now and in 20 years' time I was incapacitated and it became relevant, if it was the only written expression of my intention, although 20 years out of date, it would at least be a clear expression of what I would like to happen in certain circumstances. It may be out of date, but it is better than nothing. Ann Winterton: I believe that it may not be better than nothing, but it will be a legal document that is out of date. It will put doctors, who have a responsibility and duty to the patient to undertake treatment in the patient's best interests where appropriate, in a dilemma. Later, I will come to some information from doctors about how they view legally binding advance directives. Column Number: 214 Mr. Boswell: Does my hon. Friend agree that although we ought to have great sympathy with the concern that she is expressing, one of the logical difficulties of excluding legally binding advance directives is that they give a doctor no discretion in interpreting best interests? If there is no other information, the doctor must go by best interests and that might be contrary to the previously expressed wishes of the person concerned. That is a difficulty, which is why I come down in favour of enabling them to be specified. Ann Winterton: I hear what my hon. Friend says, and it would concern me if a doctor were to judge such matters on best interests when those best interests do not encompass the life and health of the patient. The doctor has a professional duty to his patient. The House of Lords Select Committee on Medical Ethics recognised the dangers of treatment being delayed if doctors were required to take into account the possibility of an advance directive. In paragraph 201, it stated
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The BMA has since changed its view on advance directives, but its original concern is still valid. Paragraph 265 goes on to state:
- ''There should be a presumption, in the absence of any explicit instruction to the contrary, in favour of all ordinary care and clinically indicated treatment being given. A doctor who treats a patient in genuine ignorance of the provisions of a directive should not be considered culpable if the treatment proves to have been contrary to the wishes therein expressed, and there should be no expectation that treatment in an emergency should be delayed while inquiry is made about a possible advance directive.''
The Mental Capacity Bill does not include any right of conscientious objection for doctors, which is a concern. However, the Committee recognised such a right. That is implicit in paragraph 265, which states:
- ''Doctors who anticipate having conscientious objections to complying with the directives of their patients should make this clear at an early stage in their preparation, so that patients may transfer to other doctors if they wish.''
Good advice can be taken from that.
My hon. Friend the Member for Daventry intervened to ask about the following point: in making decisions and subsequently in this Bill, the Government claim that advance directives are already legally binding according to common law. They have been challenged a number of times to cite a definitive case to support general acceptance of advance directives as legally binding. I hope that the Minister will be able to do so.
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Instead of citing such a case previously, the Government have mentioned three cases that are of highly questionable authority. The most contentious, and the one that everyone will recognise, is the application of the Airedale NHS trust to end the life of Mr. Anthony Bland—a case that had nothing to do with advance directives. The court admitted at the time that he had not given any indications of his wishes. Why should he have done? He was a young man who
Column Number: 215was absolutely football crazy. He went to a match and did not imagine for one minute that what later happened was a possibility. Most young people do not even think of the possibility of dying, because they think that they are immortal. We have all been through that stage and can identify with it. The conclusion was reached that Mr. Bland would not have wanted to continue living in a persistent vegetative state. However there was no way of confirming that. That is a clear indication of the dangers of citing such a case as the basis for a law making advance directives legally binding. The application to the court was that assisted food and fluid was a form of treatment that could be withdrawn, which returns us once more to that central point.
The second case, re. T, related to the refusal of a blood transfusion by a Jehovah's Witness on religious grounds. I will come to the detail of that case later, as it is very interesting. The aim had nothing to do with deliberately ending a patient's life, nor did it involve a general refusal of treatment made in advance of the time when the patient was subject to the relevant condition. I am sure that most people in the Committee and elsewhere accept the right of Jehovah's Witnesses to declare in advance that they do not want a blood transfusion. I disagree with them fundamentally, but I respect their view.
In the third case cited by the Government, re. C, the patient was in a mental hospital and the court decided that he was competent to make his own decision. He was fully aware of the specific condition for which he was refusing treatment—the amputation of a gangrenous leg. While the court ruling was binding on the doctors for the future, the patient could change his mind and he knew the possible consequences of refusing treatment. That case, like the previous one, was not about general refusals of treatment made in advance of the time when the patient was subject to the condition for which they refused treatment. It is therefore worth asking the Government why they persistently claim to support the House of Lords Select Committee on Medical Ethics, from whose report I have quoted, which opposed giving statute force to advance directives, and why they have stated throughout that the Mental Capacity Bill does not enshrine the Bland judgment in statute law. Yet the Government persistently justify the clause making advance directives legally binding, citing as their justification the Bland judgment—the very judgment they have promised throughout not to enshrine in statute law.
Furthermore, the Mental Capacity Bill would enable proxy decision makers to enforce advance directives, which may be written or oral. There is one exception only to that, which, in the interests of time, I will not go into now.
I mentioned the case involving a Jehovah's Witness. I have a little bit of the judgment with me and I hope, with your permission, Mr. Cran, to tell the Committee about it. The case related to a woman who, when she was a Jehovah's Witness, had left an advance directive declaring that in no circumstances would she have a blood transfusion. Subsequently, she married a Muslim, who made it a condition that she had
Column Number: 216nothing more to do with the Jehovah's Witnesses. In fact, she never thereafter attended any further religious meetings. To all intents and purposes she had rejected her previous faith. When the woman became ill and in need of a transfusion, the matter of her advance directive was raised and the hospital was unwilling to give her the necessary treatment. Consequently, her father appealed to the court on the grounds that she was no longer a Jehovah's Witness and her advance directive no longer applied.
Mrs. Humble: The hon. Lady is highlighting an interesting case, but she has not said whether or not that woman lacked capacity when she was in the hospital. If there was still a presumption of capacity, which is the basis of the Bill, she could still have told the doctors that she wanted a blood transfusion. The Bill would have protected her.
Ann Winterton: The hon. Lady makes a reasonable point. In this case, the father had to go to court to make the judgment different, because the circumstances had changed between the time the woman made the legally binding advance directive and the time of her illness. She may well have been unconscious at the time and unable to have her decision rescinded.
Mr. Lammy: Will the hon. Lady be comforted by clause 25(4)(c), which was added because of the concerns voiced by the Roman Catholic Church and the Anglican Communion? Under that provision, an advance decision will not be valid if the circumstances change.
Ann Winterton: That is a good thing to have included in the Bill, but I am not 100 per cent. comforted by it, because the principle is still an extremely difficult one. We are dealing, as we have said several times, with the difference between theory and what happens on the ground. I hope that the Minister will not mind if I relate what happened in the case. .
Paragraph 50 of the judgment given at the end of that case states that
- ''putting the father's case at its very lowest, there must in the light of his evidence be very considerable doubt as to whether the advance directive is still valid and applicable. There is simply no clear and convincing proof that the advance directive is still valid and applicable. The father's evidence having raised doubts—real doubts, not fanciful doubts or mere speculations—those doubts must be resolved in favour of the preservation of life.''
Will the Minister give me some comfort about doubts being resolved in favour of the presumption of life? I would be comforted if he gave me that assurance—that legally binding assurance. http://www.kent.steinhaug.no/forum/showthread.php?s=a338f8d71f073131d49a3058a83deee5&threadid=4052