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Plans in advance.

The British debate about the changing roles of professionals and patients in the making of end-of-life decisions took a small step forward this spring. In March, the Law Commission, the body charged with preparing recommendations for Parliament, issued its Report on Mental Incapacity, which proposes new legislation that would make provision, including provision relating to health care, for people lacking mental capacity. In April, the British Medical Association (BMA) responded to the urging of the House of Lords Committee on Medical Ethics by publishing a new Code of Practice for health professionals, Advance Statements about Medical Treatment. To the surprise of some, there proved to be large areas of agreement between the lawyers and the practitioners, although predictably both have been criticized for failing to go far enough to empower patients and their surrogates in making health care decisions.

The BMA's new Code of Practice, while recognizing that health professionals may on occasion be legally liable if they disregard an instruction refusing treatment, nevertheless holds firmly to the view that the interests of both patients and professionals are best served by legally nonbinding dialogue (advance statements) rather than by enforceable directives. The code provides examples of the different forms such nonbinding statements may take, makes suggestions as to their content, and suggests means for their implementation. Although the new code recognizes the potential value of advance statements in other than end-of-life decisions, it does not specifically address such other examples as advance obstetric directives ("birth plans"), probably the most common form of advance directive made in Britain. As a matter of public policy, the BMA code provides that people should not be able to refuse basic care in advance nor instruct others to do so. (Basic care for the BMA includes "warmth, shelter, pain relief, management of distressing symptoms such as breathlessness or vomiting, and hygienic measures ... [and] measures, such as moistening a patient's mouth, necessary for comfort.")

The Law Commission began from the premise that there is need for a single law covering the differing aspects of decisionmaking on behalf of people with mental incapacity. In common with the BMA, the commission defines incapacity as the inability to understand or retain information or to make or communicate decisions, and it too endorses the encouragement and enabling of advance statements (providing that they do not preclude basic care or unnecessarily endanger a fetus). Moreover, both agree that the basic standard for decisionmaking should be the patient's best interest. However, unlike the BMA, and the House of Lords Committee before it, the commission sees a need for the creation of a Continuing Power of Attorney whose holder would, subject to certain narrow restrictions, have the legal power to make and have implemented health care and other decisions regarding the mentally incapacitated donee.

Critics of the BMA code and the Law Commission's proposals have already pointed out that both lack clarity and power. Conscientious objectors have noted that informed refusals, already carrying force in law, have in the past been overthrown on the grounds that refusal was made without adequate information, or that the conditions were not completely relevant, or that refusal was itself suggestive of incompetence--all circumstances where others' views of the best interest of patients rather than their self-determination become controlling. Others have expressed the view that the commission's recommendations establish a slippery slope, opening the way to the state's approval of suicide, assisted suicide, and euthanasia. The commission's bill is unlikely even to be debated in Parliament, let alone become law, without there being a great deal more public pressure than now seems likely. This will leave in place the BMA's new code, which, insofar as it defines good medical practice, will at least assure that patients' views are heard if they make them known. At best, it may eventually come to require that practitioners actually seek out such views.--Ross Kessel, Marlborough, Devon, England.
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Title Annotation:advance directives in the United Kingdom
Author:Kessel, Ross
Publication:The Hastings Center Report
Date:Jul 1, 1995
Words:646
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