Binding and Loosing -Advance Directives and the Mental Capacity Act

Suppose for a moment that you are a judge. A man who has stolen a loaf is brought before you . It turns out that he stole the loaf because he was poor and had nothing to eat. You would probably let him go. But you wouldn't then go on to make a law to say that stealing was ok. There are lots of cases where stealing is just stealing. And you probably wouldn't go on to write into the law that if a person was poor, that they were to be acquitted. If you did that you would have to legislate for lots of other exceptions and the law would become confused and unclear on the matter. Instead, you might provide guidelines as to what is to be taken into consideration in judging someone, but you wouldn't give it a statutory force. After all, what is a judge and jury there for, but to use their common sense?

This is the essence of law making. It's about knowing what to bind and what to loose. Good law gets the balance right. Bad law gets the balance wrong. The Mental Capacity Act got it wrong when it made advance directives legally binding.

Why did the MCA make advance directives legally binding? It really goes back to what originally prompted the law. People lacking mental capacity have less choice than anyone else over their life. Their medication, their clothes, the place that they live, their finances; all these matters are organised through their carer and what they actually want can easily get lost. The MCA was meant to be a way of making sure that the person's choice was respected and so the MCA's five principles were as follows;

1.
A person must be assumed to have capacity unless it is established that they lack capacity.
2.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

5.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

These seem a reasonably straightforward and laudable set of aims. They actually work quite well in everyday situations. But look what happens if you make advance directives legally binding. The balance between statement 3 and statement 4 is lost. The law becomes completely confused and it becomes impossible to make a decision based on it.

Then there's the bother of advance directives themselves. Now, most peoples' idea of an advance directive is a living will, carefully drawn up at leisure with witnesses in attendance. But an advance directive can be a suicide note, as Kerrie Wooltorton has just demonstrated. Or it can be a form that is handed to you as you're being wheeled into hospital with a stroke, stating that if you go into a coma, you don't want life sustaining treatment. Most people would sign that thinking that the hospital was referring to ventilators, whereas it also applies to intravenous drips. And this is where it all gets really messy. You have to start drawing up law for all the eventualities. For example, does the person really understand the implications of the directive? Do they know that they will not automatically be provided with an intravenous drip unless they specify it? If someone has a degenerative illness like Parkinsons and states they want treatment withdrawn when things get too much, and they don't keep their directive up to date, what do you do if a cure becomes available and they don't have the capacity to revoke their original directive? (This is entirely possible; there have been very promising results for Parkinsons in adult stem cell research in America and other single cell diseases like it). If a person can sign their name on the directive, does that mean they understand what they are signing? I can answer that one for you, because my mother signed up for a fitted kitchen when she was in the early stages of Alzheimers despite being too old to be granted a loan and despite the price being ridiculous. Only the fact that my sister was a lawyer and that we acted very quickly, saved her from losing a whole lot of money. The MCA does try to address some of these dilemmas but the bottom line is that it can't be policed. If something goes wrong with a directive, you can't override. It's got to go to court and there isn't always the time to do that.

If you make the advance directive advisory, all the confusion goes away. A doctor can use their discretion. If someone like Kerrie Wooltorton comes in, they can give treatment. If there's a relative hanging about looking for money and it's their signature as witness on the directive, they can ignore it. If it's someone desperately ill from cancer, they can treat palliatively but not aggressively. But make it legally binding and all discretion goes out of the window. It doesn't increase choice; it actually makes choice impossible.

Two years before the MCA started its passage, Scotland had already updated its law on this subject with the Adults with Incapacity Act. I'll say more about this, but in Scotland, advance directives are still advisory. And the law is much better for it.