There's Nothing New in Dying Now: Will Welfare Attorney Decision Making at End of Life Make a Real Difference?
DOI | http://doi.org/10.1111/j.1467-6478.2012.00580.x |
Author | Jo Samanta |
Date | 01 June 2012 |
Published date | 01 June 2012 |
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 2, JUNE 2012
ISSN: 0263-323X, pp. 241±68
There's Nothing New in Dying Now: Will Welfare Attorney
Decision Making at End of Life Make a Real Difference?
Jo Samanta*
Advance care planning is a way to express value-based preferences in
order to guide future treatment decisions following loss of decision-
making capacity. It aims to ensure that one's critical values continue to
influence healthcare decisions, particularly at end of life. The Mental
Capacity Act 2005 permits adults with capacity to appoint welfare
attorneys to act as their proxy decision-makers following loss of
capacity. A focus group study was used to explore the views and
perceptions of lawyers and health professionals to attorney decision
making at end of life. Whilst participants gave a guarded welcome to
the introduction of healthcare and welfare attorneys, potential
challenges were identified, based upon professional norms and
expectations. A shared consensus was that the realization of the full
potential of proxy decision making was likely to be a theoretical, rather
than real, benefit. Opinions were divided on elemental tenets such as
prospective autonomy, best interests, and the potential for conflict.
INTRODUCTION
In English law advance care planning has traditionally been limited to
advance decisions
1
and statements of wishes and preferences.
2
Advance
241
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Leicester De Montfort Law School, De Montfort University, The Gateway,
Leicester LE1 9BH, England
JSamanta@dmu.ac.uk
The research was supported by an Early Career Research Fellowship awarded by De
Montfort University. Thanks to the participants who gave their time and enthusiasm; to
Professors A. Ferner and T. Buck; the late D. Price; R. Ward; to my research assistant, Dr
S. Sargent, and two anonymous referees for their helpful comments.
1 Otherwise known as advance directives, or living wills.
2 Statements of wishes are non-legally binding indications of values and ideals
which the incapacitated person would want to inform healthcare and welfare
decisions. Although not legally binding, these statements need to be taken into
decisions have, in particular, been beleaguered by ethical and legal con-
straints: the need to ensure validity and applicability as well as an array of
ideological perspectives that challenge the moral prerogative of choosing in
advance.
3
The range of advance care-planning options has been positively extended
by the possibility for competent adults to appoint `welfare attorneys' to act
as their pro xy decisio n-maker fo r healthca re and welf are matter s.
4
Appropriately instructed attorneys are empowered to consent to, or refuse,
clinically indicated treatment in the event that the donor lacks capacity for
the particular decision to be made. I have previously argued on a conceptual
basis that lasting powers of attorney for healthcare might not be as effective
as originally envisaged for the purposes of promoting prospective self-
determination.
5
In particular, compliance with statutory obligations to act in
the individual's objective best interests
6
could conceivably diminish the
attorney's freedom to decide in accordance with the donor's previous
instructions, values, and critical interests.
7
Subsequent to the recognition in Bland that `in relation to incompetent
adults, . .. nobody has power to give consent to medical treatment',
8
the Law
Commission identified an apparent need for extending powers of attorney to
healthcare and welfare matters.
9
This was underpinned by the proposition
that extending attorney powers to healthcare decisions would confer a
242
account in determining a person's best interests (s. 4(6)(a) of the Mental Capacity
Act 2005).
3 These arguments have been rehearsed by commentators such as R. Dworkin, Life's
Dominion (1994) 218±41; R. Dresser, `Dworkin on dementia: elegant theory,
questionable policy' (1995) 25(6) Hastings Center Report 32±8; N. Cantor, `Pros-
pective Autonomy: on the limits of shaping one's postcompetence medical fate'
(1992) 8 J. of Contemporary Health Law and Policy 13±22; D. Parfit, Reasons and
Persons (1984); and A. Maclean, `Advance Directives, Future Selves and Decision-
Making' (2006) 14 Medical Law Rev. 291. A notable statement of the law's approach
4 Section 9 of the Mental Capacity Act 2005. The Adults with Incapacity (Scotland)
Act 2000 makes similar provision for Scotland. There is currently no equivalent
provision in Northern Ireland.
5 J. Samanta, `Lasting powers of attorney for healthcare under the Mental Capacity
Act 2005: enhanced prospective self-determination for future incapacity or a
simulacrum?' (2009) 17 Medical Law Rev. 377±409.
6 In Scotland the welfare attorney must be `satisfied that the intervention will benefit
the adult': s. 1(2) of the Adults with Incapacity (Scotland) Act 2000.
7 For example, as opposed to attorney-instructed decision making based upon a
substituted judgement.
8Airedale NHS Trust v. Bland [1993] 1 All E.R. 821, at 872 per Lord Goff.
9 Law Commission, Mental Incapacity, report no. 231 (1995). In Scotland it was
possible to create Enduring Powers of Attorney over non-financial matters: see s.
71(1) of the Law Reform (Miscellaneous Provisions) (Scotland) 1990. This was,
however, intended to be an interim measure pending further review.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School
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