Academic journal article The Hastings Center Report

Plans in Advance

Academic journal article The Hastings Center Report

Plans in Advance

Article excerpt

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. …

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