106.Memorandum from The Society for the
Protection of Unborn Children (SPUC) (MIB 890)
Capacitythe Bill is not needed to define
capacity, since good case law provides this. Best InterestsThe
Bill departs radically from the existing, well-understood, long-established
criteria. The proposed criteria are incomplete and will be inflexible
if written into statute. The "wishes and feelings" test
is prejudicial to those who lack self-esteem. Patient autonomy
is an important value, but is not a patients only interest.
Advance Decisions and Lasting Powers of Attorney
(LPA)Doctors already have a common law duty to treat incompetent
patients. This arises from the principle of necessity, directed
to the patient's best interests. For the incompetent patient,
medical decision-making should be the prerogative of medically
qualified personnel. The advance decision mechanism in the bill
lacks the most rudimentary safeguardssuch as the need for
an impartial witness, and for the patient to be informed about
the treatments being refused.
The safeguards against advance decisions being
misapplied are woefully inadequate.
The advance decision and lasting power of attorney
provisions, would have the effect of going much further than the
Bland judgement on a statute basisit would undermining
the provision of care for incapacitated people very widely.
Those trying to save the lives of attempted
suicides could be penalised by the Bill.
Doctors should not be forced to complicity in
suicide or euthanasiaassisting suicide and euthanasia are
unethical and at present remain illegal. These are important provisions
for the protection of vulnerable members of society.
Patients should be discouraged from regarding
their lives as worthless.
Advance decisions could be made under duress,
or falsely reported. Lasting powers of attorney are susceptible
to equally serious or worse abuses.
Donees of LPAs would have neither appropriate
medcal expertise nor legal answerability to make healthcare decisions.
They might also have an interest in the patient's death. LPAs
would be particularly potent (and hence risky) in the context
of the distorted best-interests criteria in the Bill.
Contrary to the Joint Committeee on Human Rights,
Richard Gordon, QC, points to serious risks of infringements of
convention rights due to limitations on access to the Court of
The Bill will lead to some patients being seriously
harmed by neglect who will not die in short order, but rather
become chronically incapacitated and increasingly ill and bed-ridden,
while the law forbids doctors to treat them.
The government's claim to be opposed to euthanasia
is belied by its promotion of euthanasia by omission in this bill.
It is imperative that the Government should
ensure that any legislation it proposes does not allow omissions
of treatment or care which are undertaken with the intention that
1. The Society for the Protection of Unborn
Children (SPUC) is a lobbying and educational membership organisation,
founded in London in 1967 to defend human life from conception
to natural death. It has members of all faiths and none, and the
Society is not allied to any particular denomination or faith.
SPUC has been invited by parliamentary committees to submit evidence
on a range of topics. SPUC gave evidence to the House of Lords
Select Committee on Medical Ethics in 1993, which considered a
number of issues relevant to the current draft Mental Incapacity
Bill (henceforth "the draft MIB").
2. SPUC's particular areas of concern regarding
the MIB are:
advance decisions to refuse treatment,
lasting powers of attorney, and
the court of protection.
We comment further on the issues of:
non-treatment and neglect,
euthanasia by denial of sustenance,
the government's stance on euthanasia,
misconceptions regarding the Bill,
the government's legislative plans.
3. The definition of incapacity in section
1(2) as including temporary incapacity could apply to someone
who is intoxicated or affected by the accidental or deliberate
consumption of "recreational" or medicinal drugs. In
considering the effects of the Bill, consideration must be given
to the impact of the best interests criteria, advance decisions
and lasting powers of attorney in such cases.
4. Temporary incapacity following an apparent
suicide attempt should not be regarded as justifying non-treatment
on the basis of a suicide note or any other statement which may
be construed as an advance decision to refuse treatment.
5. SPUC is also concerned that donees of
lasting powers of attorney (LPAs), in determining capacity in
the donor, are not subject to sufficient checks and balances,
and the bill contains a serious threat to the lives of patients
signing LPAs (see section below on Court of Protection).
6. Since a common-law test for determining
capacity already exists (paragraph 97-111, "Misconceptions
regarding the Bill"), a statutory definition and test for
capacity is unnecessary.
7. At present, there is no statutory definition
of a patient's "best interests," which may be surprising
as this is such a critical notion in many legal decisions relating
to how individuals should be cared for. Despite the lack of statutory
guidance, it is a notion refined by decades of application in
medical and social fields, and by a number of important legal
judgments. "Best interests" in medical terms are generally
understood, as is reflected in case law
to include such basic factors as preserving life, maintaining
or restoring health and minimising suffering. These factors command
extremely wide support in the community and are uncontroversial
and (relatively) easy to apply for doctors. They commend themselves
in principle as the basis of an ethical approach. Any other of
the criteria sometimes suggested for the determination of best
interests should be advisory, not decisive.
8. In re F,
the court held that at common law a doctor can lawfully operate
on or give other treatment to adult patients who are incapable
of consenting to his doing so, provided that the operation or
treatment is in the best interests of such patients. The operation
or treatment will be in their best interests only if it
is carried out in order either to save their lives or to ensure
improvement or prevent deterioration in their physical or mental
health. [our emphasis]
9. Furthermore, to legislate on the meaning
of "best interests" is to risk codifying a system that
departs radically from the traditional approach, to the detriment
of patients. Leading public lawyer Richard Gordon QC has stated:
"The obvious scope for treating vulnerable persons contrary
to their best interests in MIB and in a way which deprives them
of life is considerable."
10. Resolving controversies over the application
of "best interests" would not be achieved simply by
legislation, which would itself be subject to interpretation by
the courts. However, to incorporate a novel view of "best
interests" into statute law may leave the courts with less
freedom to interpret the law to the benefit of vulnerable people.
11. Another danger is that although the
draft MIB relates specifically to mentally incapacitated adults,
once legislation is enacted which incorporates "best interests"
criteria, these criteria may be used by the courts as terms of
reference for determining "best interests" in other
situations, entrenching further this inadequate approach.
12. At present there is a "presumption
in favour of life" where the patient is not competent to
consent to treatment. The approach taken in the draft MIB would
undermine that principle in law and medical practice.
13. The draft MIB suggests that "best
interests" are determined in the light of the ascertainable
"wishes and feelings" of the incapacitated person. Relying
on "wishes and feelings" suggests that a person's life
is not worthwhile, and is not to be treated as worthwhile by others,
unless the individual recognises it as such. For instance, those
who are suicidal "feel" that they would be better off
dead and "wish" to die. For them, death could be regarded
as being in their "best interests" if this definition
were used, and they could well be denied life-saving interventions.
14. The draft MIB places the notions "wishes"
and "feelings" together. Often they will coincide, but
sometimes they will contradict. A person may feel angry or aggrieved
at having to endure medical procedures, but still indicate a wish
to undergo them. In the case of an incompetent patient, whose
presumed wishes and feelings are in tension, how will a decision
15. We have reservations about certain applications
of the Bolam
test, in which a doctor is considered not to be acting negligently
if he acts "in accordance with a responsible and competent
body of relevant professional opinion." Our reservations
are concerned largely with the use of that principle to support
judgments (eg Bland)
which are objectionable when tested against more fundamental ethical
principles. However, the Bolam test is much preferable
to a situation in which liability for "negligence" could
hinge not on a clinical test but on failure to canvass the "wishes
and feelings" of relevant parties.
16. Doctors are required to consider each
individual patient's best interests. However, it is a mistake
to assume that because each individual case may require a different
course of treatment in pursuit of the best interests, that best
interests coincide with the particular patient's wishes prior
to becoming incapacitated. "Best interests" do not always
coincide with the choices a patient makes, or might have made
before becoming incapacitated. Choosing not to observe the incompetent
person's wishes does not necessarily imply disrespect for the
individual or contravene his or her rights. Doctors often need
to make treatment decisions against the competent patient's wishes,
but in their best interests, eg when a patient asks for a prescription,
the doctor will consider whether or not it will benefit the patient.
17. In legal terms, competent patients have
an absolute right to refuse treatment. However, this expression
of a juridical ideal must be viewed in the light of everyday practice.
The exercise of that right is not always straightforward, and
the offer and acceptance (or refusal) of treatment may be bound
up with other factors. A TB patient for example, may freely give
an assurance that he will complete the course of medication his
doctor offers. Is he free, on a whim, to exercise his "absolute
legal right" to stop the treatment halfway through? Is it
right for doctors to try to attach any "conditions"
to an offer of treatment? Some treatments may be ineffective or
risky if certain conditions are not observed: "Don't drive
or operate machinery after taking this drug", etc.
18. Autonomy, while being important, is
not the only interest a patient has. The exercise of autonomy
depends on the more basic interests of life and health. These
interests become especially important if a person becomes incapacitated,
a circumstance in which the patient can no longer exercise autonomy.
Regardless of any decrease in autonomy, an incapacitated person
still has intrinsic dignity and a right to live simply by virtue
of being human
19. An individual's best interests and his
wishes do not always coincide. As Richard Gordon QC has noted
with reference to powers of attorney:
". . . the statutory criteria [for best
interests proposed in the MIB] are an attempt to put the donor
in the position of a person with capacity. But there is no true
analogue because a person with capacity may often act autonomously
but contrary to his or her best interests. This attempt at substituted
capacity reflects an internal contradiction in the logic of best
20. Moreover, a patient's autonomy may be
undermined if a decision is made at a time when the patient is
unable to communicate his dissent from it.
21. SPUC submits that the proposed legislation
for determining "best interests" criteria is undesirable
since it depart radically from existing well-understood, uncontroversial
principles and also risks imposing a narrow and dangerous definition.
Advance and proxy-decision making in general
22. Lord Brandon of Oakbrook said in Re:
"In many cases . . . it will not only be
lawful for doctors, on the ground of necessity, to operate on
or give other medical treatment to adult patients disabled from
giving their consent: it will also be their common law duty to
Legally-binding advance decisions and powers
of attorney may prevent doctors from fulfilling their existing
23. Lord Brandon also said in said in Re:
"If doctors were to be required, in deciding
whether an operation or other treatment was in the best interests
of adults incompetent to give consent, to apply some test more
stringent than the Bolam test, the result would be that such adults
would, in some circumstances at least, be deprived of the benefit
of medical treatment which adults competent to give consent would
enjoy. In my opinion it would be wrong for the law, in its concern
to protect such adults, to produce such a result."
The MIB, by making doctors obey legally-binding
advance decisions and powers of attorney, would create the kind
of more stringent test that Lord Brandon warned against, and thereby
deprive incompetent patients of the benefit of medical treatment
which adults competent to give consent would enjoy. It is important
here to note the ruling by Butler-Sloss LJ in NHS Trust v S,
DG & SG
that depriving an incompetent patient of the benefit of medical
treatment which a competent adult would enjoy is contrary to English
and European law.
24. SPUC submits that while due consideration
must be given to patients' and relatives' concerns, the present
situation in which medical decision-making for incompetent adults
is the responsibility of medical professionals is much preferable
to the poorly-designed provisions of the draft MIB. Lord Goff
said in Re: F:
"Take the example of an elderly person who
suffers a stroke which renders him incapable of speech or movement.
It is by virtue of this principle that the doctor who treats him,
the nurse who cares for him, even the relative or friend or neighbour
who comes in to look after him will commit no wrong when he or
she touches his body."
Lord Goff also quoted Lord Donaldson MR:
"`I see nothing incongruous in doctors and
others who have a caring responsibility being required, when acting
in relation to an adult who is incompetent, to exercise a right
of choice in exactly the same way as would the court or reasonable
parents in relation to a child, making due allowance, of course,
for the fact that the patient is not a child, and I am satisfied
that that is what the law does in fact require.'"
The common-law does not restrict this principle
of necessity to emergencies: Lord Goff also said in Re: F
"the historical origins of the principle
of necessity do not point to emergency as such as providing the
criterion of lawful intervention without consent."
25. According to Butler-Sloss LJ,
doctors have two distinct legal duties to their incapacitated
patients: first, to act at all times in accordance with a responsible
body of medical opinion secondly, to act in the best interests
of the mentally incapacitated adult. The provision for legally-binding
advance decisions and proxy decision-making under the MIB would
undermine the first of these duties, and make the second meaningless.
Advance decisions and lasting powers of attorney would over-ride
medical opinion, and by effectively excluding medical criteria
from best interests, the notion of a responsible body of medical
opinion is further obscured.
26. Legally binding advance and proxy decision-making
might also work against patient autonomy because the inflexibility
of their legally-binding nature does not take into account that
patients often change their mind, as Butler-Sloss LJ said in Re:
". . . A feature of some of the cases to
which we have referred has been the favorable reaction of the
patient who refused treatment to the subsequent medical intervention
and the successful outcome."
27. Legally-binding advance decisions and
powers of attorney would diminish the autonomy of doctors, forcing
them to act in what has hitherto been regarded as a medically
28. In Making Decisions (introduction,
20) the Government said:
"The courts . . . have determined that certain
forms of advance statement already have full effect at common
law . . . Given the division of opinion which exists on this complex
subject and given the flexibility inherent in developing case
law, the Government believes that it would not be appropriate
to legislate at the present time, and thus fix the statutory position
once and for all. The Government is satisfied that the guidance
contained in case law, together with the Code of Practice Advance
Statements about Medical Treatment published by the British
Medical Association, provides sufficient clarity and flexibility
to enable the validity and applicability of advance statements
to be decided on a case-by-case basis. However, the Government
intends to continue to keep the subject under consideration in
the light of future medical and legal developments."
29. One of the "legal developments"
since Making Decisions was issued was the ruling by Mr
Justice Hughes in Re: AK,
"case law" which helps even further to "provide
sufficient clarity and flexibility to enable the validity and
applicability of advance statements to be decided on a case by
"It is . . . clearly the law that the doctors
are not entitled so to act if it is known that the patient, provided
he was of sound mind and full capacity, has let it be known that
he does not consent and that such treatment is against his wishes.
To this extent an advance indication of the wishes of a patient
of full capacity and sound mind are effective. Care will of course
have to be taken to ensure that such anticipatory declarations
of wishes still represent the wishes of the patient. Care must
be taken to investigate how long ago the expression of wishes
was made. Care must be taken to investigate with what knowledge
the expression of wishes was made. All the circumstances in which
the expression of wishes was given will of course have to be investigated.
In the present case the expression of AK's decision are recent
and made not on any hypothetical basis but in the fullest possible
knowledge of impending reality."
30. Even by the Government's own standards,
therefore, it is unnecessary to legislate for advance decisions.
31. Yet not only will the draft MIB contradict
Making Decisions and "fix the statutory position once
and for all", it will go radically beyond the ruling in Re:
AK, as any validly made out "advance decision" would
now become a binding legal instrument regardless of how old it
is, or how ill-informed or uninformed about the condition or the
treatment the patient might be.
32. The exclusions in section 24(4) of the
MIB provide no mechanism for testing whether "circumstances
exist which were not anticipated by P at the time of the advance
decision and which would have affected his decision had he anticipated
33. It could be argued that this is a widely
drawn exclusion. However, judging by existing pro-forma advance
directives, little detail is likely to be given of the circumstances
in which they are intended to come into effect. They are presumably
drafted in this way to ensure applicability in the widest range
of circumstances. Enthusiasts for advance directives may decide
that they wish to maintain this approach, since clause 24(4)b
will invalidate the advance decision if any explicitly specified
circumstances are absent.
34. Secondly, some way is required to determine
which of the circumstances now obtaining that were not specified
would have affected the patient's decision if he had been able
to predict them. This is a huge speculative question. What kind
of evidence would be required? Who should be consulted or have
a right to be heard? How would disputes be resolved?
35. Consider a person making an advance
decision saying: "If I become incapacitated as a result of
brain injury, degenerative illness or dementia, I wish only to
have basic care, and no invasive treatment, surgical intervention,
resuscitation or other intensive treatment. This is to apply equally
to life sustaining treatment." What if this person loses
capacity through dementia, but then suffers a bowel obstruction,
which surgery could rectify but may otherwise be fatal? How could
it be decided if this is a circumstance that the patient anticipated
or not? And if it was decided that he had not anticipated this
situation, how would one know whether it would have affected his
36. The new treatments which the patient
could not have foreseen being developed since making his advance
decision will not automatically be permitted for the patient,
but the question would have to be somehow addressed: how would
this have affected his decision?
37. Since the Bland
judgement, food and fluids delivered by tube have been considered
"medical treatment" and therefore can be withdrawn or
withheld by doctors. The draft MIB would give statutory force
to advance decisions, including decisions to refuse "treatment"
including food and fluids.
38. Advance decisions should not be used
to force healthcare professionals into complicity with a patient's
intent to bring about his own death.
39. Any system using advance decisions must
prevent them being used to bring about the deaths of patients.
In the Bland
case, Lord Mustill noted that:
"It is a striking fact that in 20 of the
39 American states which have legislated in favour of `living
wills', the legislation specifically excludes termination of life
by the withdrawal of nourishment and hydration."
40. Among the many problems of advance decisions
are that: it is impossible to predict in advance what one will
want in a situation not previously experienced; ones wishes and
feelings will almost necessarily change following incapacity;
ones ability to form wishes and feelings are likely to be impaired
by incapacity; new treatments may become available which the person
signing the advance decisions could not have foreseen.
41. Under the draft MIB, revocation of the
advance decision requires "capacity" otherwise it is
valid and binding. The Bill states that the advance decision is
not valid if the patient does "anything else clearly inconsistent
with the advance decision remaining his fixed decision."
This sounds helpful, but in practice it would provide little or
no safeguard because the inconsistent act will only count if the
person has "capacity"and who will give evidence
to the "inconsistent act"? Medical staff may be placed
under such great pressure to free hospital beds that they may
feel unwilling or unable to give the necessary evidence.
42. The House of Lords Select Committee
on Medical Ethics, which reported in 1994, opposed giving advance
decisions greater legal force, saying this would risk
"depriving patients of the benefit of the
doctor's professional expertise and of new treatment and procedures
which may have become available since the Advance Directive was
43. Unlike LPAs, advance decisions will
not have to be registered, allowing for them to be made orally
(ie the person only has to say s/he wants to refuse treatment
in particular circumstancesit need not be written down.)
Thus all that would be needed for such a statement to be binding
would be someone to say "I heard Mrs. Smith say she didn't
want to be treated if she was in this condition". In such
circumstances it would then be illegal for the doctor to give
the patient treatmentpresumably including tube-delivered
food and fluidsif the patient had specified refusal of
44. The draft MIB creates punishments for
"concealing or destroying" an advance refusal of medical
treatment. Now that tube-delivered food and fluids are regarded
as medical treatment, this means that a person could be punished
for trying to prevent a patient being starved and dehydrated to
death, and doctors could be punished for saving a life by refusing
to withdraw or withhold food and fluids from a vulnerable person.
45. Also, such a provision could criminalise
parents, for example, who destroy or conceal their son's suicide
note, fearing (with good reason) that if doctors become aware
of it he will not be treated. This scenario illustrates the fact
that, ethically, it is defensibleor even imperativeto
conceal an expression of someone's wishes in order to prevent
the accomplishment of his intention to bring about his own death.
Ordinarily, it would be wrong to withhold from those responsible
for a person's health care an expression of his or her wishes
which needs to be taken into account in decision-making. Ethical
problems arise, however, when an advance refusal is liable to
be treated as binding.
46. The best way to obviate the difficulties
in creating the specific offence envisaged is to refrain from
legislation for advance refusals.
47. While an advance refusal is likely to
protect the doctor against an action for medical negligence, the
patient would thereby be deprived of the protection afforded by
the possibility of legal action.
48. The advance directive drawn up by the
Voluntary Euthanasia Society reads: "I wish it to be understood
that I fear degeneration and indignity far more than I fear death.
I ask my medical attendants to bear this in mind when considering
what my intentions would be in any uncertain situation."
49. Under section 24(5) of the MIB, a statement
such as this is likely to be regarded "an indication to the
contrary" over-riding the presumption in favour of life.
It is equally likely that a statement so worded, especially when
made by a member of the Voluntary Euthanasia Society, is based
on a belief that life loses its value under certain conditions
and that its end is not merely tolerable but may become the object
of one's intentions.
50. In such circumstances an advance directive,
if binding once its author becomes incapacitated, would thus be
an instrument of its author's intention to cause his own death,
and therefore morally unacceptable.
51. Doctors who refuse on clinical or other
ethical grounds to implement an advance refusal face litigation
and possibly criminal conviction. Even in situations where there
is no obligation to provide therapeutic measures (for example,
when they are ineffective) there remains a duty of care towards
the patient. It would be unreasonable, and immoral, to force healthcare
professionals to relinquish this responsibility because of their
conscientious objection to implementing clinically inappropriate
or unethical advance refusals.
52. A further practical problem: how would
a conflict between two undated written advance refusals be resolved,
in the absence of evidence as to which was the more recent? (Indeed,
how would a doctor act in the face of conflicting statements in
the same advance directive?)
53. SPUC submits that it is unnecessary
to legislate for advance decisions; and the MIB is prejudicial
to the welfare of patients who have made advance refusals, since
it would protect bad clinical practice and criminalise good clinical,
Lasting powers of attorney
54. The House of Lords Select Committee
on Medical Ethics concluded that a system of proxy decision-making:
"is vulnerable to the same problems as advance
directives, and indeed to a greater degree."
55. It is important to distinguish between
two kinds of statement by proxy. A proxy may (a) be communicating
preferences expressed by the patient himself before he became
incapacitated; or (b) be making his own judgment as to the likely
preferences of the patient.
56. As a matter of good practice, a doctor
should take into account any statement that he reasonably believes
to belong to category (a). However, doctors must be much more
cautious about proxies in category (b).
57. Regardless of the understanding of the
proxy's role, such a proxy decision-maker would not need to be
medically or legally qualified; would not be not legally accountable
for the consequences of whatever advice or instructions that he
may give to medical staff; and may benefit in some way, especially
financially, from the patient's death.
58. Such a proxy decision-maker might order
the patient to be deprived of care or treatment with the intention
of bringing about the patient's death, on the grounds that the
incapacitated patient "wouldn't want to live like this".
59. The concept of autonomy would become
corrupted to a concept of substituted judgment and euthanasia
would become an option even if the patient had not asked for it.
60. Only the senior clinician in charge
can be expected to be suitably qualified to make decisive judgements
as to the appropriate medical care and treatment for the patient,
and only such senior clinician can be expected to be accountable
for such judgements.
61. Lord Brandon of Oakbrook said in Re:
"In my opinion, the principle is that, when
persons lack the capacity, for whatever reason, to take decisions
about the performance of operations on them, or the giving of
other medical treatment to them, it is necessary that some other
person or persons, with the appropriate qualifications, should
take such decisions for them." [our italics]
LPAs will not in general be qualified to make
62. This does not mean that the patient
may be subjected to whatever treatments and decisions the doctors
care to make. The doctor must seek the patient's restoration of
health, prevention of impairment and alleviation from suffering,
whilst always protecting the patient's life.
63. Proxies are by their nature, more prone
to introduce extraneous considerationstheir own feelings
and interests, or those of other people, which are neither relevant
to the autonomy principle nor to the doctor's duty to serve his
patient's best interests. As the court held in Wilsher,
the duty of care ought to be tailored to the acts rather than
the individual themselves. Doctors experienced in the medical
conditions that patients experience are in a better position than
relatives or friends to decide which medical acts best fulfill
the duty of care towards their patients.
64. We also note that a non-medical proxy
could not be liable at all for medical negligence: a further lack
of protection for patients.
65. Doctors may properly act in accordance
with a proxy's statement if it is not against their clinical judgment
to do so, and if they reasonably believe that the proxy is expressing
the patient's own wishes. Doctors are already free to take this
approach, and there is no advantage in new legislation (whereas
the dangers, as we note, are considerable).
66. SPUC submits that LPAs applying to healthcare
decisions require much more stringent safeguards than the draft
MIB provides and pose an extremely serious threat to patients
as the draft stands. An attorney's refusal of treatment should
not be legally binding and there should be no lessening at all
of the current liability, civil or criminal, that applies to doctors.
The Court of Protection
67. Under the MIB, the Court of Protection
would have its functions redrawn to underwrite decisions to withdraw
food and fluids from vulnerable people, and thus to cause their
deaths. There may be insuperable problems for any judge opposed
to medical killing sitting on the Court of Protection, because
they may well have to take part in its function of supporting
decisions that mentally incapacitated people be starved and dehydrated
68. We foresee that the courts may resolve
any conflict between the draft Mental Incapacity Bill and the
Suicide Act 1961 by instituting the practice that healthcare professionals
are exempt from penalties for complicity in suicide, provided
that they act in accordance with the new legislation.
69. Richard Gordon QC has concluded that:
". . . the legal threshold at which a donee
[of a lasting power of attorney] is empowered to make life or
death decisions on behalf of the donor is . . . not subject to
effective control by the Court prior to the action being taken."
(opinion at 59).
"Article 6(1) ECHR provides materially that:
In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law. "It is also well
established that even a temporary impediment on access may violate
this right." (opinion at 49)
". . . there is no mechanism for the Court
to become involved at all. There is no compulsion on a donee [of
a lasting power of attorney] to bring the matter before the Court
at all. This is, to my mind, a serious omission in Article 6 protection
in this area of the law given the substantial and effective protection
that are considered to be fundamental to ECHR protection."
(opinion at 63)
"It is also, to say the least, a temporary
impediment to access (and therefore, also a breach of Article
6) for obviously interested parties (such as those exercising
general authority under clause 6) to require the leave of the
Court under clause 40(2) and for there to be a general prohibition
against applications without leave under clause 40. A fortiori
given the fact that there is no statutory mechanism for the involvement
of the Court at all." (opinion at 63).
"The right of access to a Court under clause
40 is, in my view, inadequate to comply with the need for immediate
access to a Court, without impediment, to safeguard the interests
of incapacitated persons in an area of considerable moral and
ethical controversy which may, in many instances, be at variance
with objective clinical judgement." (opinion at 61)
70. SPUC submits that applications regarding
the lawfulness of any proposed treatment, or withdrawal of treatment
or care, should be made to no lesser forum than the High Court.
Non-treatment and neglect
71. The MIB provides for punishment if a
person "ill treats or wilfully neglects" a mentally
incapacitated person in his or her care. However it allows withholding
or withdrawal of food and fluids, with the purpose of ending life.
Starving and dehydrating a vulnerable person to death is in itself
72. We note that Professor Peter Millard,
formerly Eleanor Peel Professor of Geriatric Medicine at St George's
Hospital, London and past President of the British Geriatric Society,
has warned against the assumption that requests for non-treatment
in advance directives will necessarily result in death. In some
cases patients could survive to suffer "a lengthy, painful
. . . bedridden existence, precisely what they sought to avoid."
(press statement, 18 April 1995). This danger should dispel any
notion that some may have that legally-binding advance refusals
would, overall, result in clearing hospital beds.
Euthanasia by denial of sustenance
73. Many people concerned about human rights,
medical ethics and the rights of the elderly and disabled have
over many years continually voiced their opposition to the withholding
or withdrawal of nutrition and hydration from a patient so as
to cause the patient's death.
74. In an open letter published in the Daily
Telegraph in July 2001, 11 respected medics and medico-legal
lawyers said that:
". . . the withdrawing and withholding of
treatment from patients, particularly hydration and nutrition,
is a matter of prime public concern."
75. As we said in our submission to the
House of Lords Select Committee on Medical Ethics:
"Giving food and water to people is about
as basic a kind of care as we can give them, the bottom line of
any expressions of equal concern and respect. Just as we do not
define hunger and thirst as pathologics or clinical conditions,
so we do not normally define the giving of food and water as treatments,
even if it requires some medical assistance. It is not, after
all, aimed at preventing or curing illness, retarding deterioration,
or relieving pain and suffering. It is simply meeting a basic
human need like sanitary care and protection from exposure."
76. As we continued in our submission to
the Select Committee:
"even if artificially delivered sustenance
is regarded as `medical treatment.' it is hard to see how this
could be regarded as `extraordinary' (and therefore optional)
care, since it is neither futile nor is its provision generally
burdensome relative to its benefits."
Where it is futileie it is no longer
effective as a means of nourishing the personor does impose
undue burdens on a particular patient, it may of course quite
properly be withdrawn or withheld, and as we have noted, the same
would apply to the oral provision of food and fluids.
77. "It is ironic that the only reason
that tube-feeding has been identified as `treatment' has been
so that it can be withdrawn." PVS expert Dr Keith Andrews,
(1995) 311 BMJ 1437 (letters).
78. We note that the Select Committee on
Medical Ethics did not support the idea of placing Bland
on the statute book. In April 2000, government minister Yvette
"As a result of the strongly held views
expressed in that consultation [Who Decides?], the Government
decided not to put the Bland judgment, which is in case law, on
the statute book."
We support this position, and remain wholly
opposed to putting Bland into statute.
79. Yet while the draft MIB does not explicitly
enshrine Bland in statute, it would go considerably beyond Bland
in some of its effects. In Bland, tube-feeding was defined
as a medical treatment, which could be withdrawn if regarded as
futile. The draft MIB does not define tube-feeding as medical
treatment, but it makes any "treatment" done by a "person
providing health care" refusable, either by a donee of LPA
(section 10(3)) or by an AD (section 23(1)(a)). Thus it would
seem that a "blanket" refusal of treatment might prevent
health care providers from doing anything described as a "procedure."
This might include hygiene, hydration by drip, spoon-feeding,
giving sedatives or pain-killers, turning immobile bed-bound patients,
etc. (see 50(1): "In this Act . . . . `treatment' includes
a diagnostic or other procedure.")
80. Also, we fear that the enactment of
the MIB as it stands would attack the ability of doctors to "force
feed" anorexic patients, since the Bill is liable to be interpreted
as exalting the patient's apparent wishes over the licenceand
moral responsibilityof doctors to act in such circumstances.
If legally binding advance refusals lead to the loss of such lives,
they will become instruments of tyranny over doctors and patients,
rather than of "autonomy."
The Government and euthanasia
81. Euthanasia advocates have long suggested
that lethal injections should be preferred to starvation and dehydration.
As long ago as 1984, pro-euthanasia bioethicist Dr Helga Kuhse
"If we can get people to accept the removal
of all treatment and care-especially the removal of food and fluids-they
will see what a painful way this is to die and then, in the patient's
best interests, they will accept the lethal injection".
82. The cruelty of mass euthanasia by starvation
and dehydration would almost certainly lead to pressure for what
is euphemistically called "terminal sedation"lethal
injections under the guise of palliative care. The euthanasia
lobby must be denied the fertile ground of "passive"
euthanasia found in the draft MIB upon which it could wage a renewed
battle for "active euthanasia".
83. It is no surprise that the pro-euthanasia
Hemlock Society of Colorado (now euphemistically renamed "End-Of-Life
Choices") endorses death through starvation as a form of
84. It is interesting to note that the concepts
of living wills was invented by an attorney for the Euthanasia
Educational Fund, Louis Kutner
and first proposed by Kutner at a meeting of the Euthanasia Society
of America in the late 1960s;
that living wills were introduced into the United Kingdom by the
Voluntary Euthanasia Society (VES) during the 1980s;
and that the VES promoted a 1983 private members' bill in the
House of Lords entitled the Medical Treatment (Advance Directives)
85. The proposals in the draft MIB are in
many respects similar to the proposals contained in the Law Commission
1995 Report on Mental Incapacity. It is important to note that
the then Conservative Government refused to implement this report
because it would weaken the legal prohibition on euthanasia:
"The Government have decided not to legislate
on the basis of the Law Commission's proposals in their current
form . . . The Government wish to emphasise that they fully support
the views of the House of Lords Select Committee on Medical Ethics
that euthanasia is unacceptable and have no plans to change this
86. Paragraph 2.6. of the government's green
paper Who Decides? stated:
"The Government has always emphasised that
it does not accept that the individual's right to determine the
treatment he or she is prepared to accept or refuse extends to
any action deliberately taken to end the patient's life."
87. In October 1999, the present Labour
government published its proposals to reform the law on mental
incapacity, which have now been enshrined in the draft MIB. At
that time it stated that:
"the Government wishes to make absolutely
clear its complete opposition to euthanasia which is, and will
88. The Government has claimed that killing
by neglect is not euthanasia because it defines euthanasia very
narrowly as "a deliberate intervention undertaken with the
express intention of ending a life." It claims that killing
by withholding or withdrawing food and fluids is not euthanasia
because it involves withholding or withdrawing "treatment"
rather than initiating lethal treatment.
89. This is untenable. Even in Bland,
one judge (Lord Mustill) went so far as to declare the practices
of euthanasia by commission and omission ethically indistinguishable.
If the government was genuine in its opposition to euthanasia,
it would recognise that the deliberate omission of tube-feeding
to patients is euthanasia and it would ensure that the practice
was outlawed. Killing by starvation and dehydration is just as
much euthanasia as giving a lethal injection.
90. It is the intent to cause death, not
the method chosen to bring it about that is important
91. If the Government is truly serious in
its stated opposition to euthanasia, and wants to advance the
true best interests of people who are mentally incapacitated,
it should make it clear that whatever a person may have requested
in an advance decision, there is no obligation on doctors to carry
out unethical acts such as depriving a person of food or fluids
or appropriate treatment. Incapacitated people, like all human
beings, are entitled to the best available treatment, given in
their clinical best interests.
92. It is imperative that the Government
should ensure that any legislation it proposes does not allow
omissions of treatment or care which are undertaken with the intention
that death results. As we have noted, it was precisely out of
concern not to weaken the current law in this respect that the
previous Government rejected the Mental Incapacity Bill as drafted
by the Law Commission.
93. That their analysis was correct is surely
borne out by the fact that a mental incapacity bill has always
been keenly promoted by the Voluntary Euthanasia Society:
"We welcome today's draft legislation on
94. The Government's link with the euthanasia
agenda was made particularly clear in a consultation it conducted
last year on advice leaflets for decision-making regarding the
mentally incapacitated. The leaflets are meant to "set .
. . the scene for new legislation" and give "guidance
[which] will evolve over time, to reflect future changes in law
and policy affecting people who lack capacity."
One of the leaflets referred readers to the Voluntary Euthanasia
Society (VES) for information on "living wills" and
advance directives, despite the fact that such advice is available
from other organisations which do not advocate euthanasia.
95. In answer to the question "What
rights does a VES Living Will give me?" the VES website states
"In a Living Will you can set out what medical treatment
you wish to refuse in such circumstancesfor example you
may not wish to be resuscitated or tube-fed. " [our
italics]. The VES Living Will itself states: "I am not to
be subjected to any medical intervention or treatment aimed at
prolonging or sustaining my life [and] any distressing symptoms
(including any caused by lack of food and fluid) are to be fully
controlled by appropriate analgesic or other treatment, even though
that treatment may shorten my life."
96. If the government is really against
euthanasia as it claims, it should explain why it is sending people
for advice to an organisation that wants to legalise killing.
97. The "Making Decisions Alliance"
has welcomed the draft MIB. However, a number of claims by the
Alliance are erroneous or at best questionable:
98. "There is no legal framework in
England & Wales covering mental incapacitythat is,
about who can make decisions" and "At the moment there
is no legal definition of `capacity'. This means that people without
capacity do not have their rights protected because the law does
not fully recognise their particular status and situation. It
also means that it is very difficult to decide who has capacity
and who does not when a decision has to be made."
This is false: in Re: B,
Butler-Sloss P said that the general law on mental capacity was
clear and the principles established in a series of cases during
the 1990s. Butler-Sloss also said in Re: MB:
"In Tameside and Glossop Acute Services
Trust v CH  1 FLR 762 . . .Wall J . . . set out the
general principles which govern non-consensual treatment and applied
the three part test, (the C Test), set out by Thorpe J in Re
The legal test for competence in adults set
out by Justice Thorpe's decision in Re: C
"first, comprehending and retaining information,
secondly, believing it and thirdly, weighing it in the balance
to arrive at a choice".
Also, reference can be made to Masterman-Lister:
"The judge ruled that the court should only
take over the individual's function of decision making when it
was shown on the balance of probabilities that such person did
not have the capacity sufficiently to understand, absorb and retain
information, including advice, relevant to the matters in question
sufficiently to enable him or her to make decisions based upon
such information . . . The burden of proof rested on those asserting
incapacity . . . if there was clear evidence of incapacity for
a considerable period then the burden of proof might be more easily
discharged . . . following the implementation of the Human Rights
Act 1998 in order that a party was not deprived of his civil rights
by being treated as a patient, the court should always, as a matter
of practice, at the first convenient opportunity, investigate
the question of capacity whenever there was any reason to suspect
that it might be absent. That meant that, even where the issue
did not seem to be contentious, a district judge who was responsible
for case management would almost certainly require the assistance
of a medical report before being able to be satisfied that incapacity
Even one of the members of the Making Decisions
Alliance (Harry Cayton, chief executive of the Alzheimer's Society)
"The mental health act provides a framework
in which medication can be given to people who cannot give consent."
Both the Department of Health and the BMA have
published advice on the assessment of capacity.
99. "Currently, the law suggests that
a person either has full capacity or no capacity."
Yet the common-law test for capacity (cf Masterman-Lister
et al) specifies that the test is whether the person has capacity
"sufficiently to understand, absorb and retain information,
including advice, relevant to the matters in question sufficiently
to enable him or her to make decisions based upon such information"
[our italics]. (This further proves our point, made in relation
to best interests, that the flexibility of case-law currently
obviates the need for statutory criteria in relation to mental
incapacity law.) The court in Re: MB held that:
"the graver the consequences of the decision,
the commensurately greater the level of competence was required
to take the decision."
Butler-Sloss P said in Re: MB:
"A person lacks capacity if some impairment
or disturbance of mental functioning renders the person unable
to make a decision whether to consent to or to refuse treatment:
That inability to make a decision will occur when (a) the patient
is unable to comprehend and retain the information which is material
to the decision, especially as to the likely consequences of having
or not having the treatment in question. (b) . . ." [our
100. . . . professionals are often unsure
about what the law allows them to do to ensure the patient gets
the necessary treatment. As a result, professionals are at risk
of being accused of malpractice; while patients are vulnerable
to abuse. New legislation will therefore protect people who may
not have capacity, empower people who have difficulty making or
communicating decisions and, it will also help protect professionals
in carrying out their duties."
Yet Lord Brandon of Oakbrook said in Re: F:
"The common law would be seriously defective
if it failed to provide a solution to the problem created by such
inability to consent. In my opinion, however, the common law does
Yet under the draft MIB, professionals will
be allowed or forced to commit what is currently regarded as malpractice;
patients will be vulnerable to abuse; and professionals will be
dispensed from carrying out their duties, viz, to act in
the best medical interests of patients to whom they have an ethical
and legal duty of care. Furthermore, even one of the members of
the Alliance (Action on Elder Abuse) has asserted that:
"[m]ost cases of elder abuse in Britain
take place in the victim's own home and are perpetrated by family
or paid carers . . . the situation is an open book for abuse.
There is no requirement for carers to be trained at all."
Does Mr. Fitzgerald realise that a donee of
a lasting power of attorneywho may well have power over
a elderly person's carewill also not be required to be
101. "The law also fails to protect
carers and professionals who may need to make decisions on behalf
of someone else."
Yet under the draft MIB carers and professionals would not be
protected from being forced to do things which are currently regarded
as medically negligent. The carer or professional may want to
preserve the person's life and health but the advance decision
or power of attorney may instruct that the person not be given
sustenance or life-sustaining treatment.
102. One of the Alliance's key concerns
is that "families and friends have no legal right to be involved
in making decisions on important welfare and medical matters on
behalf of someone who does not have capacity." The Alliance
commissioned a poll conducted by NOP which found that "98
per cent think that their partner should have the right to be
involved in making these decisions." SPUC believes that this
concern can be met by giving next of kin a statutory right to
be consulted, but not the power to override a doctor's responsibility
to make judgements in the best clinical interests of the patient.
In brief, the nearest and dearest to the patient should have the
right to be involved with but not to replace the doctor.
103. The Alliance claims that it is the
current situation whereby people in Scotland have a mental incapacity
act (the Adults with Incapacity (Scotland) Act) people in England,
Wales and Northern Ireland do not. However, it is not uncommon
for legislation in England and Wales to differ from that in Scotland
and in Northern Ireland, and there are good grounds for maintaining
this state of affairs. This approach is particularly appropriate
in the context of controversial ethical issues, so that recognition
and respect for cultural factors (such as moral and religious
viewpoints) may be maintained. Tony Blair the prime minister has
"Scotland and Northern Ireland need not
necessarily be treated in the same way across the various programmes
for devolution. One of the points of devolution is that what happens
in Northern Ireland or in Scotland is a matter of debate and can
be decided in different ways."
104. "A functional approach [to assessing
capacity] also means that we should not impose our own values.
For example, what you perceive to be an unwise or irrational decision
may be the preference of that person and their choice should be
Yet under the MIB, the values of others will be imposed upon others
in the subjective (and in the case of advance decisions, unverifiable)
interpretation of patient's wishes and feelings.
105. "We want a new rights-based legal
framework on mental capacity . . ."
Yet leading public lawyer Richard Gordon QC has concluded that
the draft MIB is incompatible in several significant ways with
the European Convention on Human Rights.
106. "Millions of people who may have
difficulty making decisions and need help to do so at some stage
in their life are currently unprotected by any legal safeguards
to ensure their views are respected."
The Alliance here has made a sweeping statement which fails to
remember the safeguards laid down by case-law, in particular those
relating to advance refusals of treatment as dealt with in Re:
107. Regarding the provisions of the Bill
on advance decisions the Alliance has said "Although advance
statements are sometimes concerned with the refusal of life-sustaining
procedures in the event of terminal illness, they have nothing
to do with euthanasia or suicide." This is disingenuous.
The provisions of the Bill do not stipulate that advance decisions
would apply only in cases of terminal illness. Rather, the trigger
for an advance decision to come into effect would simply be mental
108. Richard Kramer, co-chair of the Alliance
was quoted in Tribune magazine of 22 August 2003 as stating:
"There is a vast difference between deliberately
intervening to end someone's lifewhich is illegaland
withdrawing treatment in cases where there is no realistic prospect
of recovery now or in the future."
This statement is disregards the context of
the Bill: firstly, the Bill would allow the withdrawing not just
of treatment but of food, fluids and care from patients. Secondly,
the Bill does not just apply to the chronically mentally incapacitated,
as the Bill's states clearly in clause 1 that "a persons
lacks capacity in relation to a matter if at the material time
he is unable to make a decision for himself in relation to the
matter because of an impairment or a disturbance in the functioning
of the mind or brain" and that "It does not matter whether
the impairment or disturbance is permanent or temporary."
A person therefore who was unconscious for, say, two weeks, might
be dehydrated to death, if it was asserted that the person directed
the withdrawal of treatment in an advance decision or power of
109. Mr Kramer also states that:
"This legislation will strengthen the role
of carers' right to be involved in treatment and, if anything,
strengthen safeguards, as the decision will not be made by professionals
However, as cited above, Richard Gordon QC has
"It is also, to say the least,
a temporary impediment to access (and therefore, also a breach
of Article 6) for obviously interested parties (such as those
exercising general authority under clause 6) to require the leave
of the Court under clause 40(2) and for there to be a general
prohibition against applications without leave under clause 40.
A fortiori given the fact that there is no statutory mechanism
for the involvement of the Court at all."
Parties exercising general authority are defined
under clause 6 as "any person . . . providing any form of
care for another person [who] lacks . . . capacity in relation
to the matter in question." Therefore the Bill will deny
carers a right to challenge treatment decisions in court.
110. Mr. Kramer also states:
"The Alliance supports the
current law regarding these decisions where doctors must get permission
from the High Court before taking action. We are happy with that
and the Bill in no way endangers any of the current safeguards
However, at present this "safeguard"
only applies to permission to withdraw assisted food and fluids
from patients and only then from patients regarded as being in
a permanent vegetative state (PVS). Under the Bill even this "safeguard"
could be lost where an advance decision or lasting power of attorney
was operative and may well be lost even where an advance decision
or lasting power of attorney was not operative. Although the legality
of the withdrawal of assisted food and fluids from incapacitated
non-PVS patients is disputable, there are no "current safeguards"
(in terms of obligatory Court permission) for incapacitated non-PVS
patients against being "endanger[ed]".
David Congdon, head of campaigns and policy
at Mencap, a member of the Alliance, has said to deny treatment
to someone because they had a disability was "an assault
on their basic human rights". SPUC agrees, yet the obligatory
nature of advance and proxy decision-making under the MIB would
create such an evil. As Lord Jauncey of Tullichettle warned in
"I should like only to reiterate the importance
of not erecting such legal barriers against the provision of medical
treatment for incompetents that they are deprived of treatment
which competent persons could reasonably expect to receive in
similar circumstances. The law must not convert incompetents into
second class citizens for the purposes of health care."
111. The Alliance's answers to the question
"So why doesn't the government introduce legislation?"
is "legislation in other areas may be considered to be of
greater priority" and "discussion about decision making
can lead to complicated ethical and moral debates." SPUC
The Government's legislative plans
112. "Clearly, legislative changes
can only be made when parliamentary time allows." Making
Decisions, October 1999.
113. The Government: has already experienced
great problems in the passage of the not-unrelated Mental Health
Bill. Also, it is already seeking parliamentary time for major
primary legislation on a whole of controversial issues, including
(but not restricted to):
reform of the House of Lords;
abolition of the post of Lord Chancellor;
civil registration of same-sex partnerships;
deportation of asylum seekers;
"gender recognition" (transsexuals);
undergraduate top-up fees;
reduction of the number of Scottish
114. In a speech at the Joint Conference
of the Law Society and the Royal College of Psychiatrists in June
2002, Rosie Winterton MP, Parliamentary Secretary at the Lord
Chancellor's Department said:
"We remain committed to introducing legislation
[on mental incapacity] as soon as parliamentary time allows, but
I am sure you are aware of how busy the current legislative schedule
115. Such a complex and controversial Bill
as the draft MIB will be difficult to pass through Parliament
when there is already precious little parliamentary time for the
government to deal with its existing legislative priorities.
116. Lord Irvine of Lairg, the Lord Chancellor,
told the House of Lords in December 1997 that "[The Government]
is . . . determined that any [mental incapacity law] reform should
command the widest possible public support."
117. The Government's proposals do not command
the support of SPUC's members, who number 45,000 members throughout
the United Kingdom, include a wide cross-section of the public
and include those vulnerable under the Bill, as well as doctors
(some of whom are experts in fields relating to mental incapacity),
nurses, carers etc.
SPUC has concluded therefore that:
the legal status quo regarding protection
for the mentally incapacitated is greatly preferable to the regime
proposed by the Bill. As Richard Gordon QC has stated: "The
fact that the current state of the law is, in relation to incapacitated
persons, inadequate does not, of course mean that the intended
statutory reforms contained in MIB are ECHR (European Convention
on Human Rights) compliant."
the MIB will radically distort the
whole medico-legal regime for the welfare of vulnerable patients.
the Bill is so extensively flawed
and problematic that it should be withdrawn as it worsens, rather
than improves, the protection afforded to vulnerable patients.
52 F v West Berkshire HA; Re: F (Mental Patient: Sterilisation)
 2 AC 1. Back
Ibid, p 2 Back
Opinion on the draft Mental Incapacity Bill at 74. Back
Bolam v Friern Hospital Management Committee (1957) 1 BMLR
1,  1 WLR 582. Back
Airedale NHS Trust v Bland  AC 789 (HL). Back
The Universal Declaration of Human Rights 1948 forbids discrimination
on the basis of "personhood". It declares that "everyone
has the right to recognition everywhere as a person before the
law (Article 6), and that "everyone is entitled to all the
rights and freedoms set forth in this declaration, without distinction
of any kind" (Article 2). Back
Ibid, p 3, at paragraph 59 of opinion. Back
Ibid, p 2. Back
Ibid, p 2. Back
 EWHC 365 (Fam). Back
Ibid, p 2. Back
Ibid, p 2. Back
SL (by her litigation friend, the Official Solicitor) v. SL (her
mother)  EWCA Civ 162. Back
Re: MB  EWCA Civ 1361. Back
 1 FLR 134 E-G. Back
Ibid, p 3. Back
Ibid, p 3. Back
Report of the Select Committee on Medical Ethics. Printed 31 January
1994 Paragraphs 263 and 264. Back
Quoted in Law Com 231 (Report), paragraph 5.9. Back
Report of the Select Committee on Medical Ethics (1994),
Vol 1, paragraph 268. Back
Ibid, p 2. Back
Wilsher v Essex AHA  All ER 801 (CA). Back
Hansard, 14 Apr 2000: column 646. Back
Peter Jeffery, Going against the stream: Ethical aspects of
ageing and care, Gracewing, UK, 2001, p.97. Back
Hansard, 16th January 1996, columns 487-88. Back
R v Gibbins & Proctor 13 Crim App Rep (1919) 134. Back
Deborah Annetts, chief executive of the Voluntary Euthanasia Society,
27 June 2003, http://news.bbc.co.uk/1/hi/health/3023534.stm Back
Lord Chancellor's Department Central Office of Information, 10
April 2002. Back
 1 FLR 1090 at 1095. Back
 8 Med LR 216. Back
Re C (Adult: Refusal of Treatment)  1 WLR 290. Back
Masterman-Lister v Brutton and Co and another  EWCA
Civ 1889. Back
The Observer, 21 July 2002. Back
Hansard, 4 March 1998; Vol 307, c 1056. Back