Proposed Code of Practice on
Advance Directives or Living Wills.
Comments to the British Medical Association Working Party
by the Guild of Catholic Doctors
with the assistance of the Joint Ethico-Medical Committee
(Catholic Union / Guild of Catholic Doctors)
1. We can understand the current interest in Advance Directives or Living Wills which appear to meet a concern felt by the general public. With the advent of 'life support systems' many are worried at the prospect of being kept alive artificially, perhaps in discomfort or pain, when there is no realistic prospect of their recovery.
2. We welcome any opportunity for better communication. If an advance directive is to be signed we endorse the BMA advice in the "Statement on Advance Directives" 'that patients who draft advance directives should do so with the benefit of medical advice. Ideally this should be part of a continuing dialogue between doctor and patient.' Indeed we feel that if there is proper open discussion between the doctor (or the profession) and the patient (or the general public) then advance directives should be unnecessary. A 'living will' is only an instrument to confirm patient choices and the matters should have already been fully discussed. We agree that doctors should 'inform patients at the outset of any absolute objection the doctor has to the principle of an advance directive' and would add 'and any objection to its wording or contents.' As we see it, each individual case ought ideally to be conducted in accordance with a mutually agreed (though usually implicit) 'contract of care'.
3. We do not consider the use of futile or disproportionately burdensome treatments ever to be necessary, but we are deeply concerned about current proposals for certain advance directives.
(a) Our first reason for concern is that they seem frequently to be phrased with the aim of facilitating euthanasia (which to us is effectively either suicide or murder).
Euthanasia is when the death of a human being is brought about by deliberate intervention or deliberate omission as part of the medical care being given to him. This also entails the decision, by one or more of the parties concerned and particularly by the doctor, that the life of the patient is no longer worth living - a decision which we do not consider it ever our prerogative to take.
We therefore consider it exceedingly important that no advance directive should be so phrased or understood as to request another person deliberately to end the signatory's life, whether this be by positive act or by deliberate omission.
For example, whether or not one believed that tube feeding (eg.in an individual case of pvs) was disproportionately burdensome, and could be discontinued, it would nevertheless be wrong to discontinue it with the purpose of bringing about the patient's death. For this reason we disagree with the judgement in the Bland case, which in permitting this for this purpose, set a very dangerous precedent.
We also note with dismay two cases recently reported from the United States, where advance directives have had serious unforeseen adverse effects, one in preventing surgery to relieve painful obstruction in a case of terminal cancer, and the other in preventing cardiac resuscitation when someone collapsed after a straightforward orthopaedic procedure.
(b) Our second reason for concern is the assertion of the autonomy of the patient in a way which seems often to imply that it has some greater priority or precedence than the autonomy and conscience of the carers. Autonomy is to be valued precisely insofar as it makes for our genuine fulfilment, not as allowing our self destruction: it must always be informed by conscience and no one person's autonomy can have priority over that of another. Although we recognise that the individual has primary responsibility for his or her health care nevertheless this does not mean that he/she can expect a doctor or carer to act contrary to their own conscience.
This leads to serious concern over the conscientious position of the doctor or nurse who believes deliberate ending of life is wrong, whether by positive act or deliberate omission. It is not sufficient merely to say that they do not have to act contrary to their conscience, but it must also be recognised that they cannot be expected to initiate transfer of care to another person with the idea that that person should do precisely what they, themselves, believe to be wrong. Thus, should there be an irreconcilable difference of opinion between the doctor or health care worker and others involved in a case, it would be neither consistent with reason nor with ethics for that doctor or health care worker deliberately to hand over the care of the patient to another with the specific idea that they should adopt the opposing view. Any request for a second opinion or change of care must, therefore, originate from the patient or someone acting on his behalf, such as a proxy or Hospital authority. On the other hand, as the patient has a legal right to seek such an opinion or change, such a request should not be impeded.
If such conscientious difficulties cannot be accommodated, then excellent and caring doctors and nurses could become marginalised in training, employment and advancement. They deserve the support of their colleagues. We draw attention to two motions passed at Annual representative Meetings of the BMA. 'That this meeting insists that, in the matter of advance directives, no doctor should be obliged by patients, relatives or hospital administrative staff to act contrary to his conscience.' (1993) 'That this Meeting affirms that the position of medical practitioners who are in conscience opposed to euthanasia must be fully protected in future legislation should it occur and that no legal obligation in this respect should be allowed to be imposed unilaterally on any member of the profession at any time.' (1977)
4. Proposals for advance directives
The Law Commission is understood to have distinguished two main sorts:
I. A general indication of the directive maker's wishes, with no release from general liability and no intention of relieving the doctor of his or her duty to act in the patient's best interests.
II. An absolutely specific restriction imposed by a competent patient as a result of sincerely held convictions and releasing the provider from liability for the consequnces of the restriction.
We understand the Law Commission saw no need for any specific legislation for the 'general type', though their contents ought always to receive serious consideration by any doctor, even if not legally binding.
These proposals leave the very real concern that the 'general' type of directives might be so redrafted that they become a series of specific (and thereby - if these are legalised - strictly binding) directives
5. Positive Choices
We could accept the idea of an advance declaration indicating a positive willingness to accept certain measures if clinically appropriate. The difficulty with a positive advance directive would be if their contents were seen to offer the signatory some legal or moral right to treatment which might not otherwise be available or appropriate. "Equally, a person who has written a living will or apppointed an agent in respect of a durable power of attorney cannot demand that everything which could be done, must be done. The limits on care which are part of the concept of good medical practice must be regarded as the same as they would be for a competent patient." ('The Living Will: Consent to treatment at the end of life' A working party report. Age Concern et al. 1988, p 82) Thus, we endorse the expression of positive wishes just as clearly as negative ones, so long as it is to be recognised that such declarations can never be more than expressions of the hope that something can and may be done.
6. As we (the Joint Ethico-Medical Committee) said in our submission to the House of Lords Select Committee (at 2e), 'advance directives could never, in the nature of things, reach the high standards of informed consent which are currently required in medical practice. Can we be sure the patient would have made this choice if he had known precisely what was going to occur? We are even less happy about the employment of proxy decision makers, except in order to suggest the wishes of the patient in the most general terms.'
7. In conclusion we are, therefore, opposed to the introduction of legislation to provide for the scope and legal effect of anticipatory decisions of the 'general' type (at 1. above) - but would accept it in the few specific and rare circumstances envisaged in the Law Commission's 'second group' (at II.). 'Treatment decisions for incompetent patients must be based on an assessment of the patient's best interests. The patient's views are an important component but are not the only factor in such an assessment.' (BMA 'Guidelines on treatment decisions for patients in persistent vegetative state', 1993).
Master, The Guild of Catholic Doctors.
Chairman, Joint Ethico-Medical Committee