Joint Committee on the Draft Mental Incapacity Bill Written Evidence

106.Memorandum from The Society for the Protection of Unborn Children (SPUC) (MIB 890)


  Capacity—the Bill is not needed to define capacity, since good case law provides this. Best Interests—The 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 safeguards—such 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 basis—it 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 euthanasia—assisting 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 Protection.

  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 death results.

  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:

    —  incapacity,

    —  best interests,

    —  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, and

    —  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.

Best interests

  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[52] 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[53], 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."[54]

  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 be made?

  15.  We have reservations about certain applications of the Bolam[55] 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[56]) 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[57]

  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 interests."[58]

  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: F[59]:

    "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 do so."

  Legally-binding advance decisions and powers of attorney may prevent doctors from fulfilling their existing common-law duty.

  23.  Lord Brandon also said in said in Re: F[60]:

    "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[61] 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[62]:

    "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[63] that:

    "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[64], 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: MB[65]:

    ". . . 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 negligent way.

Advance decisions

  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[66], "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 case basis":

    "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 them."

  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 decision?

  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[67] 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[68] 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 signed."[69]

  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 circumstances—it 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 treatment—presumably including tube-delivered food and fluids—if the patient had specified refusal of life-sustaining treatment.

  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 defensible—or even imperative—to 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."[70]

  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, ethical practice.

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."[71]

  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: F[72]:

    "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 medical decisions.

  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 considerations—their 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[73], 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 to death.

  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 "wilful neglect."

  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 futile—ie it is no longer effective as a means of nourishing the person—or 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 Cooper said:

    "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."[74]

  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 licence—and moral responsibility—of 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 said:

    "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 euthanasia.

  84.  It is interesting to note that the concepts of living wills was invented by an attorney for the Euthanasia Educational Fund, Louis Kutner[75] and first proposed by Kutner at a meeting of the Euthanasia Society of America in the late 1960s[76]; that living wills were introduced into the United Kingdom by the Voluntary Euthanasia Society (VES) during the 1980s[77]; and that the VES promoted a 1983 private members' bill in the House of Lords entitled the Medical Treatment (Advance Directives) Bill.

  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 policy."[78]

  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 remain illegal".

  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[79]

  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 mental incapacity."[80]

  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."[81] 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 circumstances—for 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 incapacity—that 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."[82]

  This is false: in Re: B[83], 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[84]:

    "In Tameside and Glossop Acute Services Trust v CH [1996] 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 C".

  The legal test for competence in adults set out by Justice Thorpe's decision in Re: C[85] is:

    "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[86]:

    "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 existed."

  Even one of the members of the Making Decisions Alliance (Harry Cayton, chief executive of the Alzheimer's Society) has said:

    "The mental health act provides a framework in which medication can be given to people who cannot give consent."[87]

  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."[88] 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 italics]

  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."[89] 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 not fail."

  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."[90]

  Does Mr. Fitzgerald realise that a donee of a lasting power of attorney—who may well have power over a elderly person's care—will also not be required to be trained?

  101.  "The law also fails to protect carers and professionals who may need to make decisions on behalf of someone else."[91] 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 said:

    "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."[92]

  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 respected."[93] 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 . . ."[94] 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."[95] 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: AK.

  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 incapacity.

  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 life—which is illegal—and 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 attorney.

  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 alone."

    However, as cited above, Richard Gordon QC has stated:

          "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 in place."

    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 Re:F:

    "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 agrees.

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;

    —  a new Supreme Court;

    —  judicial appointments;

    —  civil registration of same-sex partnerships;

    —  deportation of asylum seekers;

    —  hunting;

    —  "gender recognition" (transsexuals);

    —  identity cards;

    —  undergraduate top-up fees;

    —  reduction of the number of Scottish MPs; and

    —  corruption.

  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 is.

  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.

August 2003

52   F v West Berkshire HA; Re: F (Mental Patient: Sterilisation) [1990] 2 AC 1. Back

53   Ibid, p 2 Back

54   Opinion on the draft Mental Incapacity Bill at 74. Back

55   Bolam v Friern Hospital Management Committee (1957) 1 BMLR 1, [1957] 1 WLR 582. Back

56   Airedale NHS Trust v Bland [1993] AC 789 (HL). Back

57   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

58   Ibid, p 3, at paragraph 59 of opinion. Back

59   Ibid, p 2. Back

60   Ibid, p 2. Back

61   [2003] EWHC 365 (Fam). Back

62   Ibid, p 2. Back

63   Ibid, p 2. Back

64   SL (by her litigation friend, the Official Solicitor) v. SL (her mother) [2000] EWCA Civ 162. Back

65   Re: MB [1997] EWCA Civ 1361. Back

66   [2001] 1 FLR 134 E-G. Back

67   Ibid, p 3. Back

68   Ibid, p 3. Back

69   Report of the Select Committee on Medical Ethics. Printed 31 January 1994 Paragraphs 263 and 264. Back

70   Quoted in Law Com 231 (Report), paragraph 5.9. Back

71   Report of the Select Committee on Medical Ethics (1994), Vol 1, paragraph 268. Back

72   Ibid, p 2. Back

73   Wilsher v Essex AHA [1986] All ER 801 (CA). Back

74   Hansard, 14 Apr 2000: column 646. Back

75   Peter Jeffery, Going against the stream: Ethical aspects of ageing and care, Gracewing, UK, 2001, p.97. Back

76 Back

77   Ibid. Back

78   Hansard, 16th January 1996, columns 487-88. Back

79   R v Gibbins & Proctor 13 Crim App Rep (1919) 134. Back

80   Deborah Annetts, chief executive of the Voluntary Euthanasia Society, 27 June 2003, Back

81   Lord Chancellor's Department Central Office of Information, 10 April 2002. Back

82 Back

83   [2002] 1 FLR 1090 at 1095. Back

84   [1997] 8 Med LR 216. Back

85   Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290. Back

86   Masterman-Lister v Brutton and Co and another [2002] EWCA Civ 1889. Back

87 Back

88 Back

89 Back

90   The Observer, 21 July 2002. Back

91 Back

92   Hansard, 4 March 1998; Vol 307, c 1056. Back

93 Back

94 Back

95 Back

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