85.Memorandum from The Baroness Masham
of Ilton (MIB 790)
I greatly welcome the opportunity to share my
views on the Government's Draft Mental Incapacity Bill with the
I must declare a personal interest in this subject.
I had an accident nearly 45 years ago. I was
taken to the casualty department of an accident hospital with
a fractured spine, a suspected fractured skull, several fractured
ribs, internal haemorrhage and semi-conscious.
The doctor on duty, after examining me, said
to my fianceé, "If she lives through the night she
will never move again."
One of the great dangers of advance decisions
(section 23ff) is that it is virtually impossible to predict in
advance what one will do in a situation not previously experienced.
Let us imagine the scenario of a young man who,
having seen one of his friends die after a long and distressing
struggle with brain cancer, signs an advance decision stating
that "if I become mentally incapacitated, I do not wish my
life to be sustained."
Many years later, a road accident leaves him
unconscious for several days. Both doctors and relatives wish
him to be provided with standard, simple treatment and care that
will sustain his life until he becomes conscious again, such as
sustenance through a tube, artificial ventilation and a blood
However, because the new Mental Incapacity Act
section 50(1) defines treatment as including "a diagnostic
or other procedure"; because section 24(5) allows advance
decisions to apply to life-sustaining treatment; because the courts
(in Bland) have defined sustenance through a tube as "medical
treatment"; and because the man's advance decision "expressed
in broad terms or non-scientific language" is nonetheless
legally binding (section 23(2)), his advance decision prohibits
such simple treatment and care.
The man therefore dies, even though he was not
terminally or incurably ill. He had unwittingly caused his own
death because a dangerous law exploited his understandable fear
Even if this patient, instead of being incapacitated
by a road accident, had in fact contracted brain cancer, his advance
decision may havein the words of the 1994 report by the
House of Lords Select Committee on Medical Ethics"deprived
the patient of the benefit of the doctor's professional expertise
and of new treatment and procedures which may have become available
since the advance [decision] was signed".
This is precisely why the 1994 Committee opposed
giving advance decisions greater legal force.
Regarding lasting powers of attorney (section
8ff), the 1994 Committee concluded that such a system "is
vulnerable to the same problems as advance directives, and indeed
to a greater degree."
I believe very strongly that this Bill is a
vehicle by which the pro-euthanasia lobby are seeking to exploit
the fears and vulnerability of patients and thereby introduce
euthanasia by neglect through compulsory denial of life-sustaining
treatment and care.
The fact that the Voluntary Euthanasia Society
are welcoming the Bill ought to set alarm bells ringing.
The key principles and proposals of this Bill
are so dangerous that it is unacceptable for the Government even
to propose the Bill as public policy, let alone introduce it into
I submit that the Government should scrap the
Bill and examine closely how its policy development in the area
of mental incapacity went so astray as to arrive at such unethical