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The BMA is advising people in England and Wales to consider appointing a relative or friend to make medical decisions for them if they lose capacity, in the light of legislation coming into force next October.
The advice came as the BMA launched a revised guide for UK doctors on withholding and withdrawing treatment that takes account of new legislation on mental capacity and the results of a series of high profile court cases since the last guidance in 2001.
The court cases include “right to life” cases brought by the parents of the severely handicapped baby Charlotte Wyatt and by Leslie Burke, a man with a degenerative condition who wanted a court declaration that artificial feeding and hydration would not be withdrawn from him if he lost capacity and the ability to swallow.
From 1 October, under the Mental Capacity Act 2005, people will be able to draw up a “lasting power of attorney” and appoint a friend or family member to make treatment decisions on their behalf if they become too mentally incapacitated to make such decisions. Treating patients who have appointed an attorney will mean “a significant change to [doctors'] practice,” the guidance says.
Under the new law, which applies to England and Wales, the healthcare team will have to make sure that certain conditions are fulfilled before they rely on an attorney's consent to or refusal of life prolonging treatment.
Doctors will have to be satisfied that the patient lacks capacity to make the decision and that the scope of the lasting power of attorney is broad enough to cover the particular decision. Attorneys may make decisions on life prolonging treatment only if this is specifically authorised by the power of attorney.
In addition, the lasting power of attorney must be registered with the Public Guardianship Office, and the attorney's decision must be in the patient's best interests. Disagreements over the patient's best interests can be resolved by seeking a declaration from the new Court of Protection. The court will also be able to appoint a deputy to take ongoing health decisions on a patient's behalf.
For doctors in Scotland the guidance also deals with the similar, but slightly different, regime that applies there. In Northern Ireland the common law will continue to apply.
The Mental Capacity Act also sets up a statutory framework that applies to England and Wales for advance directives or “living wills” refusing life prolonging treatment. These are already binding on doctors under common law if their terms apply to the circumstances of the case and if the patient made an informed decision, but the act makes the position clearer. Disputes about validity can be taken to the Court of Protection.
Following Mr Burke's case, the guidance reminds doctors that a fundamental part of the duty of care is to take reasonable steps to keep a patient alive if that is the patient's known wish. But the Court of Appeal confirmed that this duty does not extend to treatment that a doctor does not believe to be clinically indicated, although a second opinion should be sought.
Tony Calland, chairman of the BMA's medical ethics committee, said, “These are major changes, and it's extremely important that doctors and patients are made aware of them. This new legislation empowers patients.
“A decision to withhold or withdraw life sustaining treatment is extremely difficult for patients, families, and doctors but can be an important part of good medical care. This is welcomed by the BMA and the medical community as a whole.”
The BMA's advice on the act is available at www.bma.org.uk.