Joint Committee on the Draft Mental Incapacity Bill Written Evidence

67.Memorandum from Miss Lucy A Underwood (MIB 451)

  1.  The Draft Mental Incapacity Bill is a far-reaching piece of legislation, affecting every person in the United Kingdom since every person is vulnerable to accident or illness which could cause mental incapacity. The range of situations the Bill covers is potentially very wide, and the assumptions and attitudes inherent in its proposals open the door to an entirely new, and dangerous, way of looking at end-of-life care and incapacitated/disabled people. Given these considerations, the time allowed for the consultation process by the Joint Committee has been disproportionately short and does not, I think, give concerned individuals (which means every person in this country) sufficient opportunity to voice their concerns.

  2.  The concerns raised by the bill are several, among the more serious of which are: the possibility of abuse of the system of "Lasting Powers of Attorney"; the inclusion of food and fluids under the definition of "medical treatment"; and the assumptions apparently being made concerning the value of human life in the definition of "best interests" of the patient.

  3.  The possbilities of abuse of extending the existing "Enduring Powers of Attorney" system to include healthcare are illustrated by the case of Mrs Marjorie Niglibert, Florida, USA, who had given Lasting Powers of Attorney to her brother, who ordered her feeding tube to be removed; a court decided Mrs Nighbert was not mentally competent to revoke the LPA, and so she was effectively starved and dehydrated to death, although conscious and heard to ask a nurse for food. The LPA system could be open to abuse since the person with LPA would in many cases be a relative or other person likely to benefit from the patient's will, and ulterior motives in ordering a patient's treatment to be stopped could well come into play in certain cases.

  4.  Another concern is the coercion of doctors that such a system would cause. A person not necessarily with legal or medical qualification could order doctors, effectively, to kill a patient. This goes against the inherent purpose of the medical profession—to preserve life, promote health and alleviate suffering—and would mean overriding any moral or religious objections to such practices which a doctor or nurse might have, the Draft Mental Incapacity Bill makes possible a situation in which a doctor could be punished for treating his patient—or even simply feeding his patient—against the wishes of an unaccountable relative or acquaintance with Lasting Powers of Attorney.

  5.  UK court precedent has established that artificial nutrition and hydration is to be classified as medical treatment, and thus under the Draft Mental Incapacity Bill it could be withdrawn. This is, frankly, inaccurate. Food and fluid, however administered, are basic care such as any human has a right to; they are not extraordinary treatment. This principle, taken to its logical conclusion, implies that if I were to stab another person with a knife, or inject them with a lethal poison, I would be guilty of murder; but if I merely locked them in a room without food or water and left them there until they died, I would simply be allowing nature to take its course. This would not be a defence any court of law would take seriously—unless the victim of my actions were unable to swallow, the food were being given them through a tube, the room was a hospital ward and I had Lasting Powers of Attorney.

  6.  In addition, death by starvation and dehydration is extremely painful, even to a person deemed "incapacitated". The case of Marcia Gray (Rhode Island, USA) illustrates this harrowingly: she had been comatose for a year in 1987; she and her family had expressed a wish that extraordinary measures not be taken to extend her life; as a result, a Court ordered her feeding tube to be removed. It took some time to find a hospital willing to take this patient for the sole purpose of starving her to death; when she was transferred and her feeding tube removed, she took 15 days to die, during which time she lost 50 pounds in weight, and physicians had to sedate her heavily to control her violent seizures. It may well be but a short step from there to giving a lethal dose to a patient in whom "nature" seems to be taking a rather long and agonising course.

  7.  It is an evasion of the issue for the Government to state that it is opposed to euthanasia, since it defines euthanasia as a "deliberate intervention undertaken with the express intention of ending a life". But a deliberate omission with the same intention and the same effect differs only in method; on any honest assessment, euthanasia by omission is also euthanasia. The only time at which is it is appropriate to withdraw or withhold basic treatment or food and fluids is when death is immanent—that is, the person is dying—not just likely to die in the fairly near future—and no benefit can be derived from the intake of food and fluids (however administered) or basic treatment.

  8.  The proposed system of Advance Directives, enforced by second persons with Lasting Powers of Attorney, raises serious concerns about how disabled (including mentally incapacitated) people are viewed by the legislators of this country. Doctors, instead of acting according to the person's clinical "best interests" (ie preserving the patient's life and health and alleviating their suffering), are required to act on the person's "wishes and feelings" as expressed perhaps years before, in a different situation to that the patient is now in, and quite possibly when treatments available at the time of illness were not available. Even further, the "advance statement" according to the Bill need not be written but can be made orally. Thus, in basic reality, all that is legally necessary to starve a person to death after, for example, a severe stroke, is for a person to state to the Court of Protection "Mrs X said three years ago she would not want to be treated if she were in this condition"—and any doctor or other person who tries to prevent Mrs X from being starved and dehydrated to death will be liable to prosecution. This is not protection.

  9.  However, while the inclusion of oral statements as Advance Directives is of particular concern, Advance Directives in themselves are inadvisable, since, as suggested above, they rely on subjective, past "wishes and feelings". To be killed is never in a person's best interests, although in a state of fear, depression or pressure (real or perceived) from family/acquaintances a person may lose the will to live; such patients require good, respectful palliative care, not an affirmation by law and society that they are worthless. It is not possible for another person to judge someone else's life worthless because their medical condition looks, to us, disturbing and pitiable and because it may be irremediable.

  10.  By allowing that any lives are not worth living, we are opening the door to a mindset in which any disabled person is a mere "burden". As in the Netherlands, where both active and passive euthanasia are legal, we may reach a situation in which the elderly are afraid to go into hospital in case the doctors kill them, and where people carry cards requesting that they not be killed, by act or omission, in case of illness—in the hope that this may prevent doctors from carrying out acts of involuntary euthanasia. This may seem a long way from the proposals of the Draft Mental Incapacity Bill; but every thousand-mile journey starts with one step, and it is essential that we look at the long-term effects of this proposed legislation in terms of society's attitudes and ideology.

August 2003

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