Joint Committee on the Draft Mental Incapacity Bill Written Evidence

107.Memorandum from the Society for the Protection of Unborn Children Bioethical Advisory Team, Dr John I Fleming and Greg Smith (MIB 890a)


  The Society for the Protection of Unborn Children (SPUC) exists to promote the inviolable and inalienable right to life of all members of the human family from the first moment of human existence (fertilisation) until natural death. SPUC has, therefore, an interest is testing pieces of public policy against universal standards of human rights to see whether such public policy is in accordance with those standards and that the rights of the most vulnerable members of our society are protected both in law and in practice.

  While SPUC welcomes the opportunity that it has been given to comment on the Draft Mental Incapacity Bill (the Draft), we are concerned that the time for formulating sensible comment is so short and that the summer holiday time has been chosen as the time when such formulations must be made. Sound democratic practice requires that there be generous time for public consultation since public consultation is not merely a part of the process to which lip service is given, but is essential to that process by which laws are made for the common good.

  It is beyond the scope of this submission to fully elaborate philosophically the ethical considerations which are fundamental to the way in which a just and democratic society should honour its obligations where end-of-life decisions are to be made for patients who are no longer able to answer for themselves. We will, however, identify those fundamental ethical considerations with sufficient specification to enable judgments to be made as to whether or not the Draft is in a satisfactory condition to be put to the Parliament as the basis for debate and final enactment as law.

  The Draft represents an attempt to codify, in law, a legal process in which decisions can be made about the medical treatment of two broad classes of human beings:

    1.  Those who have lost mental capacity at some point in their lives due to injury or a disease state; and

    2.  Those whose lack of capacity has been present since birth.

  The Draft also provides "recourse, where necessary and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults lacking capacity." [Cf The Explanatory Notes].

  In the case of those who have lost mental capacity having once had it, two principal ways are described by which someone can exercise some control over the decisions made on their behalf when they become unable to answer for themselves. One is by an advanced decision as set out in the Draft in clauses 23-25; the other is by the donor person (P) conferring a lasting power of attorney on another (donee) or others (donees) such that the donee or donees have authority to make certain decisions on P's behalf and within the scope set out in the Draft in clauses 8-13. Also, the court may appoint a deputy who may give or refuse consent to the carrying out or continuation of a treatment by a person providing health care to P: Clauses 16-17.


  Rather than repeat work that has already been done and to which the Parliament already has access, we commend the work of John Keown and Luke Gormally, (1999) "Human Dignity, Autonomy and Mentally Incapacitated Patients: A Critique of Who Decides? ". The outline of the ethical and legal considerations involved in how we deal with issues connected with persons who are mentally incapacitated remains as valid today as when it was written. A copy is provided for convenience.


  Every human being, that is every member of the human family, is entitled to have recognised his or her fundamental inviolable and inalienable human rights based upon the recognition of the inherent dignity of the human being. The dignity of a human being is not something attributed to a human being based upon "quality of life" considerations. The dignity or worth of a human being is intrinsic.

  So says the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948[96] The European Convention on Human Rights builds upon the universal moral commitments of the Universal Declaration of Human Rights by "taking the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration"[97].

  Since The European Convention on Human Rights is a specification of the Universal Declaration of Human Rights then this submission will refer to both documents since all countries of the European Union are bound, in different ways, by both documents.


  Specifically, then, the following matters are the benchmark against which the Draft is to be judged in this submission.

    1.  Everyone has the inviolable and inalienable right to life. The right to life is, then, a right of which I cannot be deprived and nor may I deprive myself of it[98]

    2.  The only exception to 1. above is when a person is deprived of his or her life intentionally "in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law"[99]

    3.  Where inherent dignity and fundamental human rights are concerned, they apply equally to all members of the human family "without distinction of any kind"[100]

  It is an offence against justice and therefore not permissible to kill a human being because his or her life is judged to be without human value or be in some way not a life worth living. It may be that a person has experienced a loss of dignity in the sense that he or she no longer has the powers and abilities they once had to live life the way that he or she would like to live it. But that loss of dignity does not mean that that person has no value since there is a dignity intrinsic to the human being which is only extinguished at death. By resort to such jurisdiction the court is empowered to protect the human dignity and rights of those individuals who are so disabled that they cannot by themselves protect their own dignity and rights. This is a value which Brennan J said in Marion's Case (supra):

    underlies and informs the law: each person has a unique dignity which the law respects and which it will protect. Human dignity is a value common to our municipal law and to international instruments related to human rights. The law will protect equally the dignity of the hail and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and the intellectually disabled . . . our law admits of no discrimination against the weak and disadvantaged in their human dignity. (supra at 266)[101]

  Suicide is also not legally permitted (and cf s.2(1) of the Suicide Act 1961) since the right to life is inalienable. Given the overwhelming weight of evidence that suicide is strongly associated with debilitating psychiatric conditions the State does well when it refuses to prosecute someone for attempted suicide. The removal of criminal sanctions against attempted suicide does not constitute in itself a "right to suicide" as some have wrongly concluded.


  Suicide occurs when a person deliberately and intentionally seeks his or her own death either by a direct act or by omission. Suicide is nearly always associated with the "despair" that comes from a major psychological illness (frequently anxiety and depression). Whether or not the person is psychologically competent it is always suicide, or attempted suicide, when a person intentionally seeks death through either an act that he or she does to himself or herself or by refusing to accept something necessary to sustain life such as a life sustaining medication or food and water. Assistance in suicide occurs when one person provides the suicidal one with the means to commit suicide. It becomes euthanasia when that person performs the act necessary to bring about the death of the suicidal one. It is either assisted suicide, or even in some cases euthanasia by omission, when someone who has a duty of care and who could act to prevent the death of the person refuses to do so with the intention that the suicidal one dies.

  It is neither assisted suicide nor euthanasia when the person with the duty of care withholds or withdraws treatment that is either futile or burdensome disproportionate to benefit. When medical treatments can do no more than maintain a patient with a precarious and burdensome hold on life it is ethically appropriate to withdraw or withhold those treatments and provide all such other treatments which one would ordinarily provide to a person as well as those treatments directed to the alleviation of pain and the maximisation of patient comfort.


  Human beings have the capacity to make free choices and to determine what acts they will or will not do. The exercise of autonomy is not an absolute. It is not permissible to appeal to autonomy as a justification for killing the innocent or for doing any one of a number of things which human beings can do and have done which are destructive of self and others. "Autonomy itself as a capacity is to be valued precisely in so far as its exercise makes for the well-being and flourishing of the human beings who possess it."[102] An act or omission freely chosen is not to be admired merely because it has been freely chosen. Such free choices are to be admired and respected in so far as they respect human dignity and the fundamental human rights which derive from that dignity.

  Nor is autonomy to be thought of as a baton in a relay race which can be delivered whole and entire to another. I am the only one who can fully exercise my autonomy. I cannot exercise the autonomy of another, but I can, at that person's invitation, or by reason of my relationship to another (parent to child) exercise my own autonomy in the best interests of another, best interests being understood objectively and in a way that fully respects human dignity and human rights.


  If P, a person in good health, but who desires to commit suicide, made an advance decision that if he were found unconscious as a result of a suicide attempt, no life saving treatment was to be administered, then presumably by operation of Clauses 24 and 25, the health carer's desire to save P's life would be over ridden and any treatment in defiance of the advance decision would be unlawful.

  This is a serious infringement on ethical medical practice. Basing his opinion on studies which consistently show that the vast majority of successful suicides are performed by people suffering mental illness, usually depression, Glanville Williams has stated that it is reasonable to presume that persons found to be attempting suicide, about whom nothing is known of their state of mind, are suffering a mental disorder. He continues:

    Anyone is entitled at common law to apprehend a person who is mentally disordered and who is a danger to himself or others, the purpose of the apprehension of course, being to get him to a doctor. Unfortunately, a limitation of this rule is that the person detained must actually be mentally disordered, so if the person attempting suicide turns out to be compos mentis it seems that the detention is unlawful, and constitutes at least the tort of assault and false imprisonment[103]


  Williams then referred to an American case which decided that administering an antidote to a would be suicide was lawful[104], and a Canadian case where it was held that a would be suicide who forcibly resists an attempt by a police officer to stop him can be convicted of assaulting the officer in the execution of his duty[105].


  Two Australian cases support the interventions of health carers in saving the lives of persons attempting suicide. In one such case, Graham Kinney had been admitted to the Emergency section of St Vincent's Hospital, Melbourne, after attempting suicide by drug overdose while on bail after being charged with the murder of his mother-in-law. Doctors had caused substantial bleeding when they inserted an instrument down his throat to assist breathing. Doctors needed to find the source of bleeding, as blood supplies for transfusion were limited. His wife applied for an injunction to restrain doctors from conducting exploratory surgery to locate the source of bleeding. Kinney's wife argued that he should be allowed to die as he had leukaemia and wished to die. To bring him back from the brink of death she argued would, in the circumstances, be cruel and inhuman. Common law principles applied as Kinney had made no direction under the Medical Treatment Act. Fullager J refused the application for an injunction:

    It would require very powerful considerations indeed to persuade the court to extend that remedy to prevent doctors from saving the life of a person.

    This is especially so in the light of the Act of Parliament to which Mr Wheeler drew attention viz. The Medical Treatment Act of 1988. Further I think even more powerful considerations would be required to persuade the court to grant an injunction when the preventing of the medical or surgical treatment amounts to carrying into execution the attempted suicide of the person concerned. To grant the injunction would be to assist the person to complete his suicide[106]

  In another case Lee J of the New South Wales Supreme Court refused a prisoner, Peter Schneidas, on a hunger strike in an advanced stage of starvation caused by his refusal to take food, an injunction to restrain doctors on behalf of the Corrective Services Commission from administering food, drink or any other form of nourishment to him without consent.

  Since Schneidas was in the course of attempting to commit suicide, which was still a crime in NSW, His Honour said:

    He comes to this Court inviting me, in effect, to aid and abet him in the commission of that crime by removing an obstacle which stands in the way of him carrying out his intention. I firmly refuse to do so. I make it clear that I would not participate to any extent at all in the wilful destruction of the plaintiff's life; to injunct those who would save his life, would make me a participant[107]


  The case of Tony Bland is well known. The decisions made in this landmark case were the culmination of a series of decisions whereby British Courts have significantly compromised the law's adherence to the principle of the inviolability and inalienability of the right to life, a principle which Britain is bound to uphold in conformity with The European Convention on Human Rights.

  In the Bland case, Airdale NHS Trust v Bland [1993] AC 789, the court, while still holding that it remains murder for a doctor to intentionally kill a patient by an act, nevertheless held that, in at least some circumstances, a doctor may (even must) intentionally terminate a patient's life by deliberate omission.

  Donald Robertson has summarised the House of Lord's findings or assumptions in Bland as follows:

    —  Anthony Bland is alive.

    —  The intention (aim or purpose) of the doctors in withdrawing life support systems was to kill Anthony Bland.

    —  There is a legally significant distinction between acts of commission and acts of omission. Thus, it asserts, it is not authorising euthanasia.

    —  Anthony Bland's existence in PVS was not a benefit to him. It was not in his best interests to continue life-sustaining care or treatment and the physicians were not entitled to continue the medical care[108]

  The Bland case has also significantly reinterpreted the notion of "best interests", such that the "best interests" of a patient may now include seeking a patient's death by removal of life sustaining measures from a non-dying patient.

  No wonder, then, Lord Mustill observed in Bland [1993] AC 789 at 887 that the Bland case has left the law in a "morally and intellectually misshapen" state. In such a state all kinds of further legal developments become possible.

  So, in a subsequent case where an adult prisoner refused all nutrition, and medical experts agreed he was of sound mind and understood the consequences of his decision, the Home Secretary sought declarations that various Government servants and health carers might lawfully observe and abide by the prisoner's refusal and abstain from providing him with nutrition and hydration by artificial means or otherwise for as long as he retained the capacity to continue his refusal. Thorpe J granted the declarations on the basis that prisoners have the same right to refuse treatment as other persons, although he agreed that it wasn't an absolute right. In contrast to the Australian judges he remarked on the suicide issue:

    The second countervailing state interest, preventing suicide, is recognisable but seems to me to be of no application in cases such as this where the refusal of nutrition and medical treatment in the exercise of the right to self-determination does not constitute an act of suicide.

  Thorpe J had earlier stated, based on the authority of Bland, that:

    . . . a patient who is entitled to consent to treatment which might or would have the effect of prolonging his life and who refuses to so consent, and by reason of the refusal subsequently dies, does not commit suicide. A doctor who, in accordance with his duty, complied with the patient's wishes in such circumstances does not aid or abet a suicide[109]

  This is curious. Thorpe J seems to be saying that suicide can only be committed by an act and not by refusal of food and other forms of treatment. But Bland, whose authority he appeals to, was not about that.

  Against Thorpe J, John Finnis has observed:

    The law firmly and rightly holds that those who have undertaken to provide treatment or nourishment are not absolved from their duty by the patient's adamant refusal if that refusal is either incompetent or unlawful. A refusal which is motivated by suicidal intent is unlawful, even though suicide itself is not a criminal offence; that is why assistance, and agreements to assist, in suicide are serious criminal offences[110]


  There are similarities between the provisions of the Draft Bill and legislation which has been in operation for some years in several Australian States and Territories. The most controversial legislation has been the Medical Treatment Act 1988 (Victoria), which has been largely copied in the Medical Treatment Act 1994 (Australian Capital Territory). South Australia, which sought to cover similar issues in its Natural Death Act, replaced this in 1995 with the Consent to Medical Treatment and Palliative Care Act.

  In a recent landmark decision in the Victorian Supreme Court[111], the Public Advocate had been appointed guardian of a 68 year old comatose patient suffering from dementia. BWV suffered from a progressive and fatal form of dementia, probably Pick's Disease. She had not appeared conscious, or to have had any cortical activity, for approximately three years. She appeared to have no cognitive capacity at all and had no bodily functions, other than those which are reflexive. Further, she appeared to have no conscious perception of input from any of her sensory pathways.

  BWV received fluid and nutrition via a percutaneous endoscopic gastrostomy ("PEG") which kept her alive. BWV required full nursing care: she was doubly incontinent; received regular pressure care; was moved into a shower by a hoist; and she received medications, as well as nutrition and hydration, through the PEG. Although the brain stem of BWV continued to function normally, the medical evidence was that the damage to the cortex was irreparable. There was no prospect of any recovery, or improvement of any kind in BWV's condition.

  The evidence of the three medical witnesses who examined BWV was that the provision of nutrition and hydration, via the PEG, was futile, in the sense that it had no prospect whatever of improving her condition.

  With the support of the woman's family, the Public Advocate sought the following orders:

    (a)  provision of nutrition and hydration via a percutaneous endoscopic gastrostomy ("PEG") to BWV constitutes "medical treatment" within the meaning of the term in the Medical Treatment Act 1988; and (b) refusal of further nutrition and hydration administered via a PEG to BWV constitutes refusal of "medical treatment", rather than refusal of "palliative care", within the meaning of the Medical Treatment Act 1988.

    (b)  If the declarations sought were made, the Public Advocate, on behalf of BWV, intended to refuse further medical treatment in the form of the provision of nutrition and hydration via the PEG (subject to satisfying certain other conditions required by the Act). It was expected that BWV would die within one to four weeks of the withdrawal of such nutrition and hydration. BWV subsequently died, as predicted.

  Section 3 of the Medical Treatment Act defines "medical treatment" and "palliative care", as follows:

    "medical treatment" means the carrying out of—

    (a)  an operation; or

    (b)  the administration of a drug or other like substance; or

    (c)  any other medical procedure—

    but does not include palliative care;

    "palliative care" includes—

    (a)  the provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or

    (b)  the reasonable provision of food and water.

  Section 4 preserves other applicable laws. It states:

  4.  Other legal rights not affected

    1.  This Act does not affect any right of a person under any other law to refuse medical treatment.

    2.  This Act does not apply to palliative care and does not affect any right, power or duty which a registered medical practitioner or any other person has in relation to palliative care.

  (3)  This Act does not—

    (a)  affect the operation of section 6B (2) or 463B of the Crimes Act 1958 (these provisions are concerned with inciting, or aiding or abetting, another person to commit suicide; and using force to prevent the commission of suicide); or

    (b)  limit the operation of any other law.

  (4)  A refusal of medical treatment under this Act does not limit any duty of a registered medical practitioner or other person—

    (a)  to advise and inform the patient or the patient's agent or guardian; or

    (b)  to provide medical treatment, other than medical treatment that has been refused.

  Morris J found that the administration of nutrition and hydration using a `PEG' satisfied sub clause (b) of the definition of "medical treatment".[112]He went on to consider whether such administration also came within the meaning of "palliative care". He found that:

    "the administration of artificial nutrition and hydration, via a PEG, cannot be regarded as palliative care, where that expression is used in its natural sense. Such a procedure is, in essence, a procedure to sustain life; it is not a procedure to manage the dying process, so that it results in as little pain and suffering as possible"[113]

  Later, to cover his reasoning against appellate correction, he concluded

    If my conclusion as to the meaning of the expression "the . . . provision of food and water" is wrong, and instead this expression includes the provision of artificial nutrition or hydration, the question would then arise whether, in the circumstances of BWV, the continued provision of artificial nutrition and hydration was "reasonable". If I was required to answer this question, I would find that the further provision of artificial nutrition or hydration was not reasonable in all the circumstances. In forming this view I would rely upon the evidence of the medical witnesses who observed BWV, the view of her guardian that it would be contrary to her wishes to continue to receive nutrition and hydration through the PEG, her existing condition, the period for which she has been in her existing condition, her prognosis and the fact that continued feeding is doing no more than merely postponing the natural dying process[114]


  Comparing the Draft with the ethical principles already identified, and in the light of legal judgements that have already been made in Britain and elsewhere, SPUC finds the Draft to be fatally flawed in a number of key respects affecting the inviolable and inalienable right to life.

  While there is nothing in the Draft which specifically authorises anyone to fail to supply nutrition and hydration to a person who is incapable of supplying these essentials for life to himself or herself, clauses 23 to 25 make numerous references to "treatment", while clauses 24 and 25 refer to "life sustaining treatment". Clause 7 (4) defines life-sustaining treatment, as meaning "treatment which in the view of a person providing health care for P is necessary to sustain life". Clause 24(5) allows P to make an advance decision refusing life-sustaining treatment. "Treatment" is defined in very general terms in the interpretation section (clause 50) as including "a diagnostic or other procedure".

  In an important Australian case O'Keefe J stated that "the usual relief sought in England in respect of patients from who artificial feeding, hydration and treatment are sought to be withdrawn, is by way of declaration that "the responsible medical practitioners . . . may lawfully discontinue all life sustaining treatment and medical support measures, (including ventilation, nutrition and hydration by artificial means) designed to keep (the patient) alive in (his or her) existing permanent vegetative state'."[115] So it is that the Draft would, under the common law as interpreted in Bland, include the supply of nutrition and hydration under the rubric of "life sustaining measures".

  The Draft allows the withdrawal of food and fluids from non-dying patients either by way of an advanced decision or by way of a person exercising a lasting power of attorney. In addition, the court or a court appointed deputy might authorise such withdrawal. In this way the Draft provides for assistance in suicide and euthanasia by omission. Worse still, the conscientious doctor or other carer might find himself or herself in a position where they are legally obliged to carry out and be party to a patient's wishes which are suicidal. O'Keefe in Northridge commented on such cases:

    112  The existence of the standard and guidelines and the practice of the court clearly regard the diagnosis of permanent vegetative state as fraught with difficulties and as being one which should be arrived at only after a lengthy period, in which there is no change in the state of consciousness of the patient. Furthermore, the requirement that termination of treatment, artificial feeding and hydration be only with the prior sanction of a High Court judge, is a clear recognition of the right of unconscious patients to have their right to life protected by the full power of the law.

  The Northridge case is important in that it involves a case of wrong diagnosis by doctors, with almost fatal consequences. A 37 year old patient, John Thompson, was admitted to hospital in an unconscious state after an apparent drug overdose and given intensive care treatment. Within a few days he was written off as a person for whom there was no hope of recovery. Over the objection of the family, antibiotics and feeding were stopped. A direction was given by doctors that the patient not be resuscitated if his bodily functions ceased. The patient's sister applied to the NSW Supreme Court for orders that treatment and feeding be recommenced.

  O'Keefe J concluded:

    115.  Events subsequent to the initial hearings clearly establish that the decision to withdraw treatment and nutrition from Mr Thompson was premature; the prognosis that he would soon die, wrong. The change in his medical treatment and support regime consequent upon the intervention of the court helped to ensure that Mr Thompson not only stayed alive, but improved to the extent demonstrated on video recordings exhibited in the proceedings. Furthermore, the diagnosis and prognosis by Emeritus Professor Lance seems to have been accepted by the hospital and a number of the medical practitioners who had been treating Mr Thompson. These factors highlight the wisdom of allowing a sufficient time to pass between the trauma or other event giving rise to the unconscious state of the patient and the making of a diagnosis of permanent (or chronic) vegetative state, which may be, and in the present case was, a prelude to the withdrawal of treatment, support and nutrition.

    116.  The material before the court reveals that Mr Thompson has been transferred to a nursing home and that in such an environment he has continued to improve with the aid of appropriate rehabilitative treatment. Counsel for the defendant indicated that it was proposed to maintain appropriate medical and other treatment and support and that there was no longer any question of withdrawal of such treatment and support or of nutrition.

  Cases such as this demonstrate the need for great care and caution in dealing with incompetent patients and respecting the patient's right to life by maintaining treatment, nutrition and hydration unless the patient is unable to assimilate them. They also demonstrate the fallibility and sometimes arrogance of members of the medical profession towards incapacitated patients and the danger of giving them immunity over decisions causing the deliberate death of patients. It is ironic that the Director of Public Prosecutions, for good reasons, does not have power to give immunity against prosecutions in advance to allow a husband to assist his wife's suicide, yet under the Draft, doctors and others are given such immunity.

  The Draft fails to provide protection to patients where it is most needed. The obligation which the State has pursuant to article 2 of The European Convention on Human Rights is to make sure not only that life is not taken intentionally, but also that life sustaining treatment is made available to patients in the best interest of the patient. On these matters the Draft not only fails to ensure that those obligations are met, but contrives to provide ways and means so that they are not met.[116]


  That the Draft Mental Incapacity Bill be withdrawn.

August 2003

96   Preamble to the Universal Declaration of Human Rights. Back

97   Preamble to the The European Convention on Human Rights. Back

98   Article 2(1), The European Convention on Human Rights. Back

99   Article 2(1), The European Convention on Human Rights. Back

100   Article 2, Universal Declaration of Human Rights. Back

101   Secretary Department of Health and Community Services v. J.W.G. and S.M.B. ((1991-92) 175 CLR 218-Marion's Case: See also Halsbury's Laws of England 4th Ed. para. 901) Back

102   John Keown and Luke Gormally, 1999, "Human Dignity, Autonomy and Mentally Incapacitated Patients: A Critique of Who Decides? ", copy attached, at page 7. Back

103   Glanville Williams, Textbook of Criminal Law, London: Stevens & Sons, 1983, p.616 Back

104   Meyer v Supreme Lodge KP (1904) 70 NE (New York) Back

105   Dietrich (1978) 39 CCC (2d) 361 Back

106   In re Graham Michael Kinney: Application by Tahlia Kinney (Unreported, Vic SC. 23 December 1988) Back

107   Schneidas v Corrective Services Commission (Unreported, NSWSC, 8 April 1983). Back

108   Donald Robertson, "The Withdrawal of Medical Treatment from Patients: Fundamental Legal Issues" (1996) 70 Australian Law Journal 723 at 728. Back

109   Secretary of State for the Home Department v Robb (1995) 2 WLR 722. Back

110   John Finnis (1994), "Living Will Legislation" in Luke Gormally (ed) Euthanasia, Clinical Practice and the Law, London, The Linacre Centre, 167. Back

111   Gardner: re BWV [2003] VSC 173 (29 May 2003). Back

112   Pretty v United Kingdom (Application No. 2346/02). Back

113   Ibid, at [81]. Back

114   Ibid, at [95]. Back

115   Ibid, at [95]. Back

116   Northridge v Central Area Health Service (2000) 50 NSWLR 549 at 568. Back

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