Bill clarifies gap in law over living wills
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《英国医生杂志》
The long awaited Mental Capacity Bill, which had its first reading in the House of Commons last week, sets up a statutory framework for advance refusals of medical treatment and substitute decision making for people unable to take decisions for themselves.
The measures, which will apply in England and Wales, will plug a gap in the law whereby nobody, not even the courts, has the power to take treatment decisions on behalf of mentally incompetent adults. Under current law, the courts can merely make declarations that doctors would not be acting unlawfully in providing, withholding, or withdrawing treatment in a patient抯 best interests.
Patients will be assumed to have mental capacity unless it can be proved otherwise. The bill sets out the tests for determining capacity, which must be judged in terms of the particular decision to be taken.
Advance directives or living wills are already enforceable at common law, but the measures in the bill will give greater certainty to doctors in deciding whether they are bound to act on them.
Living wills—called "advance decisions" in the bill—drawn up when an individual has full mental capacity will take effect if capacity is later lost, provided the directive is both valid and applicable at the time the treatment is contemplated. Advance decisions will allow an incapacitated individual the same right to refuse medical treatment as someone of full capacity. To be applicable, an advance refusal of life sustaining treatment must make it clear that the treatment being refused is life sustaining.
Doctors will not incur any liability for carrying out treatment on an incapacitated patient unless, at the time, they were satisfied that an advance decision existed which was both valid and applicable to the treatment. Nor will they be held liable for the consequences of withholding or withdrawing treatment if they reasonably believed that an advance decision existed at the time that was valid and applicable.
The bill also makes provision for those with full capacity to draw up "lasting powers of attorney" appointing a trusted friend or relative to take financial, health, or personal welfare decisions on their behalf should they later become incapacitated. The proxy will be able to refuse or consent to medical treatment, including life sustaining treatment if the patient has authorised it..
A new Court of Protection will have powers to take treatment decisions or to appoint someone else to take such decisions on behalf of a mentally incapacitated person. The court will also be able to decide whether a person has the capacity to take a particular decision and whether an advance decision is valid and applicable.
The bill also sets up a framework under which research involving incapacitated patients may be allowed if strict criteria are fulfilled. The measures are expected to come into force in 2007.
Lord Filkin, the minister in the Department of Constitutional Affairs responsible for the bill, said fears that it would lead to legalised euthanasia were "misplaced."(BMJ Clare Dyer legal corr)
The measures, which will apply in England and Wales, will plug a gap in the law whereby nobody, not even the courts, has the power to take treatment decisions on behalf of mentally incompetent adults. Under current law, the courts can merely make declarations that doctors would not be acting unlawfully in providing, withholding, or withdrawing treatment in a patient抯 best interests.
Patients will be assumed to have mental capacity unless it can be proved otherwise. The bill sets out the tests for determining capacity, which must be judged in terms of the particular decision to be taken.
Advance directives or living wills are already enforceable at common law, but the measures in the bill will give greater certainty to doctors in deciding whether they are bound to act on them.
Living wills—called "advance decisions" in the bill—drawn up when an individual has full mental capacity will take effect if capacity is later lost, provided the directive is both valid and applicable at the time the treatment is contemplated. Advance decisions will allow an incapacitated individual the same right to refuse medical treatment as someone of full capacity. To be applicable, an advance refusal of life sustaining treatment must make it clear that the treatment being refused is life sustaining.
Doctors will not incur any liability for carrying out treatment on an incapacitated patient unless, at the time, they were satisfied that an advance decision existed which was both valid and applicable to the treatment. Nor will they be held liable for the consequences of withholding or withdrawing treatment if they reasonably believed that an advance decision existed at the time that was valid and applicable.
The bill also makes provision for those with full capacity to draw up "lasting powers of attorney" appointing a trusted friend or relative to take financial, health, or personal welfare decisions on their behalf should they later become incapacitated. The proxy will be able to refuse or consent to medical treatment, including life sustaining treatment if the patient has authorised it..
A new Court of Protection will have powers to take treatment decisions or to appoint someone else to take such decisions on behalf of a mentally incapacitated person. The court will also be able to decide whether a person has the capacity to take a particular decision and whether an advance decision is valid and applicable.
The bill also sets up a framework under which research involving incapacitated patients may be allowed if strict criteria are fulfilled. The measures are expected to come into force in 2007.
Lord Filkin, the minister in the Department of Constitutional Affairs responsible for the bill, said fears that it would lead to legalised euthanasia were "misplaced."(BMJ Clare Dyer legal corr)