A government white paper scheduled for this autumn seems likely to allow people to appoint a proxy to make healthcare decisions in their place.
If the proposals become law, the proxy will have the right to determine the course of medical treatment that would come into play if the patient lost the capacity to decide for themselves, through brain damage or illness.
Currently, anyone can draw up an “enduring power of attorney” authorising a relative or friend to manage their financial affairs on their behalf. Under these latest proposals, a new “continuing power of attorney” would cover healthcare and welfare matters as well as financial affairs.
The move will plug a large hole in the law under which no person – or court – is entitled to give or withhold consent to treatment of mentally incompetent adults. The only exceptions to this rule are doctors, who may act without consent if treatment, or the withdrawal of treatment, is deemed to be in the best interests of the patient.
Although relatives are currently consulted as part of best practice, they have no legal rights in the matter – a situation which causes distress for all parties if controversial life or death decisions are required or accusations of euthanasia made.
At present, the courts cannot give consent, but can only declare a course of action is deemed to be in the best interests of the patient therefore ensuring that doctors are not acting unlawfully in carrying it out.
If the proposals become law, a court of protection is likely to be set up to resolve disputes arising from the new power of attorney and to decide what would be in the patient’s best interests.
This court would also have the power to appoint a manager – probably a family member or social worker – to take decisions on the part of adults who are already mentally incapacitated and unable to appoint their own proxies.
The proposed refoms have the backing of the 4,000 organisations and individuals who responded to the green paper, Who Decides
, in December 1997.
However, the government has not yet decided whether to give statutory force to living wills – detailing wishes drawn up in advance about future healthcare in the event of future incapacity.