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The law and end-of-life patients

Don't be confused about living wills and the Mental Capacity Act, says the MDU's Ian Barker.

Recent newspaper reports suggesting that doctors might face imprisonment if they fail to end the lives of patients under the terms of living wills, may have caused GPs to wonder if there has been a change in the law regarding euthanasia.

There has not, and the Mental Capacity Act 2005 (MCA) that came into force fully on 1 October 2007, does not stipulate any such penalty.

New guidance, same rules
Living wills, also called advance decisions, have been around for some time.

The MCA and its accompanying code have set out new provisions and guidance, but the underlying principle remains the same: a valid and applicable advance decision by a competent patient to refuse treatment should be respected.

This is not the same as taking active steps to end life. The MCA also allows for patients to make a written statement requesting certain treatment or expressing a preference. But this is to be used to help in assessing the patient's best interests when they have later lost mental capacity.

This written statement will not legally bind doctors to take active steps to bring about a patient's death.

Indeed, section 62 of the MCA states that nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisted suicide.

The MCA contains a further safeguard. Section 4 (5) specifically requires that when a decision about a patient's best interest is being made that covers life sustaining treatment, the person determining the patient's best interests must not be motivated by a desire to bring about the patient's death.

The doctor's duty
An act hastening the death of another, where the death is desired or is known to be the certain result would ordinarily be murder.

The directions put to the jury by the judge Lord Devlin in the controversial case of Dr John Bodkin Adams (a GP and believer in euthanasia, acquitted of murder in 1957) remain effective statements of law, enabling doctors to treat terminally ill patients properly (see box).

The key point in Lord Devlin's directions is perhaps that the doctor is entitled to do all that is proper and necessary to relieve pain even if this has the incidental effect of shortening life.

It follows that where a doctor treating a terminally ill patient provides medication to relieve pain which will have the incidental effect of hastening death, this will not amount to murder.

This is the case provided that the aim is to relieve the patient's suffering and that the medication is given in compliance with a duty of the doctor to do so.

Ian Barker is a solicitor at the Medical Defence Union, www.the-mdu.com.

The law on end-of-life patients
Judge Lord Devlin's 1957 directions still apply

  • 'The Law does not mean that a doctor who is aiding the sick and dying has to calculate in minutes or even hours, and perhaps not in days or weeks, the effect upon a patient's life of the medicines which he administers or else be in peril of a charge of murder. If the first purpose of the medicine, the restoration of health, can no longer be achieved there is still much for a doctor to do and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life ...'
  • 'There must be cases in hospitals that are going on day after day in which what a doctor does by way of giving certain treatment or omitting to give certain treatment prolongs or shortens life by hours, or perhaps even longer ...'
  • 'If, for example, because a doctor has done something or has omitted to do something death occurs at 11 o'clock instead of 12 o'clock or even on Monday instead of Tuesday, no people of common sense would say, "Oh, the doctor has caused her death". They would say the cause of her death was the illness or injury, or whatever it was, which brought her into hospital, and the proper medical treatment that is administered and that has an incidental effect on determining the exact moment of death is not the cause of death ...'.

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