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Mental Capacity Act Code of Practice - A response from CMF to the Department for Constitutional Affairs

Published: 2nd June 2006

Introduction

The Christian Medical Fellowship (CMF) is an interdenominational organisation with more than 4,500 British doctors as members. All are Christians who desire their professional and personal lives to be governed by the Christian faith as revealed in the Bible. Members practise in all branches of the profession, and through the International Christian Medical and Dental Association are linked with like-minded colleagues in over 100 other countries.

CMF regularly makes submissions on ethical and professional matters to Government committees and to other official bodies. We have been watching the progress of the Mental Capacity Act since the issue was first investigated by the Law Commission in 1989. We have already inputted to this discussion through the following consultation responses:

  • With the Lawyers Christian Fellowship to The Lord Chancellor's Department on Making decisions: helping people who have difficulty deciding for themselves. (09/07/2002)
  • The General Medical Council on Withholding and withdrawing life-prolonging treatments: good practice in decision-making (01/07/2001)
  • The Medical Ethics Committee of the British Medical Association on Withdrawing and withholding treatment. (01/10/1998)
  • Family Policy Division of the Lord Chancellor's Department on: Who decides? Making decisions on behalf of mentally incapacitated adults. (01/03/1998)

All of these are available on our website at www.cmf.org.uk/ethics/submissions.

General Principles

Human beings, even in the agony of suffering or in a twilight mental state, deserve respect, empathy, and above all protection from abuse, harm, manipulation, and from wilful neglect. Every patient, no matter how deformed the body, deranged the mind, or diminished the personality should receive equal protection and medical care.

Doctors are not obliged to provide every treatment to every patient on every occasion. Withdrawal or withholding of treatment in a dying patient whose death is both imminent and inevitable is good medical practice if the burden of the treatment outweighs its benefit, and the intention is to relieve suffering rather than to hasten death.

There is, however, a fundamental difference between making treatment decisions and making value-of-life decisions. Doctors are qualified to make treatment decisions: to decide which treatment is worthwhile and which is not. Doctors are not qualified to make value-of-life decisions: to decide which life is worthwhile and which is not. Doctors may determine whether a treatment is futile, but they can never determine whether a life is futile. When we withdraw or withhold treatment, we are expressing a belief that the treatment is valueless, not that the patient is valueless.

Despite the many advances in curative medicine, the time-honoured maxim of 'heal sometimes, relieve often, console always' remains true. When cure fails, care must continue. Good palliative care for the dying patient must match symptom to treatment: Pain should be managed with analgesics, nausea with anti-emetics, anxiety with anxiolytics, respiratory symptoms with good airway management, hunger with appropriate nutrition, thirst with regular mouthcare and hydration. Whilst recognising that some treatments have more than one mode of action, it is no more appropriate to treat hunger and thirst with pain relief and sedation than it is to treat pain and anxiety with food and hydration.

Patients and their relatives have three prime concerns in this area: to receive good palliative care and to die with dignity and in comfort; to be spared from futile and intrusive treatments; and to avoid being neglected or abused. Guidance on end-of-life issues must ensure that it enables adequate symptom relief for dying patients, frees doctors from the obligation to provide intrusive treatments and interventions which would be burdensome to patients, and provides safeguards against abuse and negligence.

Reservations about the Act itself

We are grateful for this opportunity to comment on the Department of Constitutional Affairs' draft Codes of Practice for the Mental Capacity Act. Whilst the Act is intended to provide better protection for mentally incapacitated people against financial and physical abuse, we have concerns that it may be open to abuse and allow some patients to be deprived of artificial nutrition and hydration (ANH) inappropriately, because of:

  1. Legally binding advance refusals
  2. Broad best interests definitions that include quality of life assessments as well as assessments of medical benefit
  3. The classification of ANH as medical treatment which can be withdrawn
  4. Possible vested interests of LPAs and advocates

We will comment only on those areas in the Codes of Practice that are within our area of expertise and cause us concern.

Comments by Chapter

Chapter 4 – Best Interests

We agree with the high-expectation that is set out in the Codes' statutory checklist for determining a patient's best interests and thus making a decision on their behalf. In particular we welcome the provisions that:

“Preconceptions about someone's best interests formed just by looking at them or by making prejudicial assumptions about their quality of life or circumstances must play not part in the determination of best interests. There can be no shortcuts in determining best interests and a proper and objective assessment must be carried out on every occasion.” (4.12)

AND

“Decisions about best interests must not be based on any preconceived ideas or negative assumptions arising from the person's age, appearance or condition, not from forms of behaviour … which may make others feel uncomfortable.” (4.13)

It is imperative that these attitudes are upheld and promoted. As well as making such high statements in the Codes we would like to see increased consideration given to this area in the education of medical students and courses that go towards doctors' Continuing Professional Development.

With particular reference to 'Special-considerations for life-sustaining treatment' (4.24-4.29) please see our comments on Chapter 8 and the provision of ANH. We would like to see the best interests chapter set out a basic minimum level of care that must be maintained in all cases (as alluded to in 5.8 and 8.24)

  • Provision of nutrition and hydration by reasonable and clinically appropriate means that do not cause the patient an unacceptable level of discomfort
  • Basic nursing care, warmth, shelter, hygiene measures and bodily comfort
  • Provision of well managed pain relief

Chapter 8 – Advance Decisions to Refuse Treatment

The Act makes statutory provision for the court-assumed 'right' that “An advanced refusal is as valid as a contemporaneous decision if an advance decision exists and is valid and applicable in the particular circumstances.”

We have particular concerns with respect to advanced refusals of ANH. The Codes state that a patient can make an advanced refusal of life-sustaining medical treatment under specified circumstances: in writing, with a witness and signature, with an added signed statement for the refusal to apply “even if life is at risk”. Further, this refusal can extend to ANH, but not to 'basic or essential care' (warmth, shelter, hygiene measures, and the offer of oral food and water).

We accept that clinical circumstances exist where it is entirely appropriate to withhold ANH: when the burden outweighs any benefit to life or health, or when it confers no clinical benefit. However, under these proposals, we are concerned that doctors will be legally required to withhold/withdraw ANH in some situations where they believe such action clinically inappropriate.

Furthermore, provision of oral food and fluids instead of ANH may not be realistic for certain patients. It is acknowledged in the Codes that certain essential care is necessary to keep a patient comfortable – oral food and fluids being defined as part of this basic care. Where oral administration is unrealistic, however, it may be that ANH is required to “keep the patient comfortable” (8.24). In this respect doctors must be free to act using the best clinical judgement, according to the specific clinical indications of a particular case. We would therefore have preferred that advance refusals in relation to ANH should not be legally binding, but advisory only.

We are concerned that under the current provisions, patients may be drawn into unwise and hasty advance decisions to refuse food and fluids without being properly informed about the diagnosis and the expected course their illness will take or the treatment and palliative care options. There is also a real danger that some patients may be driven by fears of meddlesome treatment and 'being kept alive', into making advance decisions that later might be used against them.

Commonly patients change their minds about what care they would like, as their condition changes, and for this reason advance decisions must be kept constantly under review. It is also noteworthy that the majority of patients who make advance refusals actually prefer doctors to override those which they feel prejudice their care. [1]

We are also concerned that doctors may feel pressure to abide by advance refusals, against their better judgement, in order to avoid the possibility of prosecution. We suggest that some protection for doctors in these difficult situations is required. One option would be for withdrawal of food and fluid to remain subject to court hearings.

As well as being forced to act against their clinical judgment, some doctors may not be able to accede to a patient's advanced refusal because of conscientious reasons (though often in reality the two elements go hand-in-hand). The provisions for 'conscientious objection' (8.55-8.57) appear acceptable. However, we have considerable concerns that doctors in a variety of faith groups will find themselves being 'blocked' (either by their own admission, or by the decisions of others) from careers in Geriatrics, Palliative Care, Old Age Psychiatry and General Practice. We have seen a similar pattern in Christian doctors' ability to build careers in Obstetrics and Gynaecology since the 1967 Abortion Act came into force. We would like to see conscientious objection provisions in the Codes extended to include this wider picture, so that job descriptions, interviews, and the success of candidates are not influenced by these new statutory provisions.

Chapter 9 – The Independent Mental Capacity Advocate service

Independent advocates should be available on a culture specific basis. Therefore Christian patients should be able to have an advocate who is sympathetic to their Christian beliefs.

Dr Peter Saunders
General Secretary
Christian Medical Fellowship
6 Marshalsea Road
London
SE1 1HL


References

  1. Sehgal A et al. How strictly do dialysis patients want their advance directives followed? JAMA 1992;267:59-63

For further information:

Steven Fouch (CMF Head of Communications) 020 7234 9668

Media Enquiries:

Alistair Thompson on 07970 162 225

About CMF:

Christian Medical Fellowship (CMF) was founded in 1949 and is an interdenominational organisation with over 5,000 doctors, 900medical and nursing students and 300 nurses and midwives as members in all branches of medicine, nursing and midwifery. A registered charity, it is linked to over 100 similar bodies in other countries throughout the world.

CMF exists to unite Christian healthcare professionals to pursue the highest ethical standards in Christian and professional life and to increase faith in Christ and acceptance of his ethical teaching.

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