Joint Committee on the Draft Mental Incapacity Bill Written Evidence

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 Committee.

  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 transfusion.

  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 of cancer.

  Even if this patient, instead of being incapacitated by a road accident, had in fact contracted brain cancer, his advance decision may have—in 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 Parliament.

  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 proposals.

August 2003

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