Joint Committee on the Draft Mental Incapacity Bill Written Evidence

97.Memorandum from Catherine Crabtree (MIB 339)

  I write as a solicitor in the City of London deeply concerned by the proposals set forth in the draft Mental Incapacity Bill ("MIB"). In response to the Committee's request for submissions from members of the public I set out below the key points of my concerns.


  1.1  I understand that the MIB proposes to:

    (a)  give binding status to a so-called "advance decision" to have one's medical treatment withheld in circumstances of mental incapacity, regardless of the method in which such decision was communicated, the age of the decision, or how hypothetical the condition; and

    (b)  establish "Lasting Powers of Attorney" which allow a person to appoint another to act on their behalf on matters which include healthcare in the event that they lose mental capacity in the future.

  1.2  Under either (a) or (b) medical treatment could be refused to a mentally incapacitated person. Following the case of Airedale NHS Trust v Bland[39] "medical treatment" is considered to include food and fluids delivered by tube.


  2.1  Generally speaking, the law would consider the withdrawal of food and fluid to be a method of killing. A person who denied food and drink to a child in his care to the point of death, for example, would be considered to have murdered that child.

  2.2  It is a legal principle that one cannot consent to one's own killing. However, this permitting of a withdrawal of food and fluids allows that, given some degrees of handicap, one can consent to one's own killing. The necessary implication of this is that there are some classes of people who the law considers deserve fewer protections than others. The law will provide cast-iron defences for the strong and healthy, but will dilute these protections for those suffering from mental handicap.

  2.3  This reveals the fundamental thinking behind the MIB (and behind the apparent current thinking of the Family Division of the High Court)—that some lives are more worthy of protection than others. This is a worrying principle to introduce into the legal system. Assessing lives according to their "value" could lead to obvious and horrific consequences. Why do we recoil at the idea of peacefully killing in its sleep a child born into a poverty stricken and war torn country who is bound to face terrible suffering? Why are we horrified by the case of Harold Shipman who killed elderly patients without (it seems) causing them any fear or distress? It is because we recognise that life itself has a value which is not contingent upon the circumstances in which it is lived. This is an instinctive and fundamental ethical principle which has historically been upheld by our legal system. It would be attacked to the core if the MIB were to become law.


  The MIB creates punishments for "concealing or destroying" an advance refusal of medical treatment. This is tantamount to a denial of freedom of conscience. Most major world religions consider the value of life to be absolute rather than relative and members of these religions would clearly object to playing a part in the premature death of any human being. Such a provision would prevent these people and other objectors on ethical grounds from legally following their peacefully held beliefs.


  In addition to my fundamental concerns about the eroding of the value of life, there are several practical concerns which should, I suggest, in themselves be sufficient to prevent the MIB from becoming law:

    (a)  It is impossible to draft around the possibility that a patient may change his/her mind about an advance decision. There will always be the risk that a doctor will be acting against a patient's wishes when (s)he acts to bring about the ending of their life.

    (b)  An advance decision may be made in any form and need not be registered. It can therefore be made orally to any person. The potential for abuse here by a malicious relative or acquaintance is evident.

  In the strongest possible terms, I therefore urge the Committee to recommend that the MIB does not become law.

August 2003

39   [1993] AC 789. Back

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