Right of Reply: Joyce Robins

The director of Patient Concern responds to an article by our legal correspondent about the Lord Chancellor's plans to change the law relating to the mentally incapacitated
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The Independent Culture
ROBERT VERKAIK'S article on 28 October outlined the Lord Chancellor's decision to deny statutory force to Living Wills or advance directives whereby patients state what treatment they would accept or refuse if they were no longer able to make their wishes known.

As far as the independence of patients is concerned, this was the worst day in years. The Lord Chancellor is content to rely on a case-by-case development to solidify the legal validity of Living Wills. It follows that if doctors disagree with the terms of a Living Will, the only recourse is to the courts. This may be good news for lawyers, but for patients it is a body blow.

Patients who are paralysed, speechless or terminally ill, with tubes coming from every orifice, are in no position to fight a case through the courts. In practice, only hospital trusts are likely to take this route, claiming that the Living Will does not apply to the particular circumstances, or that the patient was not competent to make rational choices.

The Lord Chancellor is to allow continuing powers of attorney - medical proxies to speak for patients who cannot speak for themselves. For many of us, this is not an option. We may have no one close enough, or sufficiently like-minded, to take on what may prove to be life-or-death decisions.

Those who do are, in future, likely to believe that proxies, now backed by statute, are a better option than Living Wills, which have a more shaky legal status. This is living dangerously. Relatives or friends, saddled with the enormous responsibility for accepting or rejecting a life-prolonging treatment on the patient's behalf, may have their own emotional, moral - or financial - reasons for their decision. A terrifying prospect for anyone with a clear idea of how they want to live - or die.