By Peter J. Smith

LONDON, August 16, 2006 ( – British ministers decided Monday that new courts established to arbitrate life and death for patients in cases involving “living wills” and “powers of attorney” will have license to conduct their proceedings in secret away from public scrutiny, according to a report in the Daily Mail. According to the Mail, the new Court of Protection mandated by the Mental Capacity Act of 2005 “will be the first legal tribunal in Britain to hold life-and-death powers since the abolition of the death penalty for murder in 1965.”

Under rules outlined in a “consultation paper” by Lord Falconer, the new Court of Protection will have authority to convene in secret to adjudicate cases disputing advance decisions to refuse or withdraw treatment for incapacitated hospital patients contained in “living wills” or “powers of attorney”.

The rules state that a judge may carry on proceedings in secret if publicity would defeat the object of the hearing; if confidential information is involved; if a private hearing would protect the interests of the patient; or if the judge “considers this to be necessary in the interests of justice.”

“The court may order that identities of people involved in a case are not disclosed if it is considered necessary to protect their interests,” adds Falconer. Furthermore, he acknowledges, “The circumstances under which the court may consider that all or part of a hearing should be heard in private are wide.”

However, under the MCA, a patient’s advance directive or “living will” to refuse or withdraw life-preserving treatment does not necessarily need to have an establishment in writing. In fact, a patient’s verbal communiqué of his wishes suffices as an advance directive or “living will”, even if the incapacitated patient left a written directive to the contrary. In cases such as these, the Court of Protections will decide whether a patient lives or dies.

Critics point out that while the MCA opened up a chaotic situation in the first place where anyone may claim a patient gave them a verbal “living will” to forgo life-preserving treatment, its inherent problems are only exacerbated by granting the court the power to euthanize patients.

“It will allow the courts to do anything and everything and nobody will ever find out,” decried Robert Whelan of the Civitas think tank. “It reminds me of the Abortion Act – it was supposed to have a very limited effect but when things turned out otherwise it was too late to do anything about it. We won’t know what is going on in these courts.”

Furthermore, the MCA makes doctors liable to criminal prosecution, should they refuse to kill their patients in accordance with a “living will” which the Court establishes as existing and valid.

The rules for the new Court of Protection set out in Lord Falconer’s “consultation paper” will go into effect on the authority of Lord Chief Justice Lord Phillips concurrently with the Mental Capacity Act going into operation next April. The new Court of Protection’s leading judge will be Sir Mark Potter, President of the Family Division.