15 Morningside Road, Edinburgh EH10 4DP, Tel: 0131 447 6394 or 0774 298 4459
19 March 2003
Amendment 101 would, in practice have the effect of making advance statements legally binding on doctors. In most cases, doctors will not have the time and administrative resources necessary to get involved in the tribunal referral procedure for numbers of patients. If the intention is to prevent patients receiving controversial treatments which they have indicated they do not want, this can be achieved without making advance statements legally binding in this way. The Bill could simply specify certain treatments eg ECT for which additional safeguards are required in certain circumstances.
1. The corrollary of making advance statements legally binding in this way is that doctors who act in the best interests of incompetent patients according to their skill and judgment could be sued or even prosecuted for assault and could find themselves subject to disciplinary action for professional misconduct. Therefore, it is likely that doctors will act defensively when faced with advance refusals of treatment and may follow them even where there is some doubt as to their validity.
2. The Amendment contains no provision for emergencies. Professor Owens of the Royal Edinburgh Hospital has indicated that 90% of his cases are emergencies. Delay in treating may adversely affect the outcome.
3. Advance statements becoming binding to the exclusion of all other facts and circumstances in this way will lead to doctors being forced to give sub-optimal treatment or no treatment at all in a situation where this may result in harm to the patient.
4. There may be serious problems where patients may indicate that they wish to revoke an advance statement but are considered to lack the necessary capacity to do so.
5. Advance statements are useful as an indication of a patient's wishes at the time they are made However, when they are binding to the exclusion of other factors, they become blunt instruments. They do not allow for flexibility and entail an increased burden of administration.
6. Curiously advance statements do not always promote patient autonomy. They can undermine it because they limit the treatment options available at some undefined future date in circumstances which may not have been foreseen. Treatments often change and improve and this may not have been taken into account at the time of making the statement.
7. The danger in introducing legally binding advance statements in legislation in this way is that they will then almost certainly become legally binding for other purposes than mental health treatment as well, either by the model being extended in other statutes, or by judges referring to the Mental Health Act and stretching the common law further than it goes at present. This may lead ultimately to passive euthanasia.