The Lord Chancellor has warned doctors they risk going on trial for assault if they refuse to allow patients who have made ‘living wills’ to die. Lord Falconer set out the determination of the Government to use draconian penalties to enforce living wills in a guide to Labour’s Mental Capacity Act for doctors, nurses and social workers. The law, which comes into operation next spring, gives full legal force to living wills, or advance decisions, in which patients say, sometimes years in advance, how they wish to be treated if they become incapacitated and lose the ability to speak for themselves. In a living will a patient can demand that life-preserving treatment be withdrawn if they become too ill to communicate or feed themselves.
The guidelines issued by Lord Falconer – with the backing of Health Secretary Patricia Hewitt – say that doctors may declare themselves conscientious objectors if they have religious or moral objections to carrying out the instructions of a living will. But in that case a doctor must pass his or her patient over to another doctor who will follow the instructions to allow the patient to die.
The warning over damages claims raises the prospect that family or friends of a patient who have a financial interest in their death could sue a doctor who fails to kill them. It also opens the bizarre possibility that a patient who recovers could sue a doctor for not letting them die.
Surgeon Dr Peter Saunders, head of the Christian Medical Fellowship, said: ‘Clinical circumstances exist where it is entirely appropriate to withhold food and fluids: for example in a dying patient when their delivery proves both burdensome and ineffective for the patient. ‘But we are concerned that patients will make unwise and hasty advance refusals of food and fluids without being properly informed about the diagnosis. It is too easy for patients to be driven by fears of meddlesome treatment and “being kept alive”, into making advance refusals that later might be used against them.’ He added: ‘Commonly patients change their minds about what care they would like, as their condition changes. ‘This law does not allow real conscientious objection. A doctor who believes it would be clinically wrong to withdraw food and fluids must pass their patient over to another doctor who will do so. That makes them complicit in the death.’
Philosophy Professor David Conway of the Civitas think tank said: ‘This is opening a terrible can of worms and it threatens to cause havoc. ‘The best option would be for a doctor to find out if patients have made living wills and refuse to treat those who have.’
Academic lawyer Dr Jacqueline Laing of London Metropolitan University said: ‘Many people will have filled in advance decision forms in ignorance of their lethal implications and of alternative courses of action. ‘The Act inverts good medical practice by criminalizing medical staff who intervene to save the lives of their patients with simple cures and, in certain cases, even food and fluids. Any conscientious opt-out is nullified by the threat of prosecution.’ She added: ‘The lethal direction of the Act and the cost-saving implications for the NHS should be obvious.’