Joint Committee on the Draft Mental Incapacity Bill Written Evidence

116.Memorandum from ALERT (MIB 933)

  ALERT is an association of those who oppose the legalisation of euthanasia in all its forms. We are very concerned that whilst this Bill is intended to protect persons who lack capacity to make decisions, in its present form it could be used as an excuse for a doctor or one given power of attorney to shorten or end a person's life deliberately.

  In particular we feel that:

  1.  Temporary incapacity could be deemed a reason for someone other than the person lacking capacity to make a decision, which could prove lethal or otherwise prevent that person from recovering his or her decision-making capacity.

  2.  The weight given in the Bill to "living wills" or advance refusals of treatment may prevent doctors and carers from treating their patient conscientiously, since they could be expected to follow to the letter a statement made by the patient at a time when the present circumstances could only be imagined, and an informed decision was impossible.

  3.  Furthermore, if they requested neglect of ordinary life-sustaining care they would be encouraging assisted suicide or deliberate killing by omission, both of which are contrary to human and medical ethics, presently illegal, and harmful not only to the patient but to the profession of medicine and to society at large.

  ALERT has requested the opinion of Richard Gordon, QC, on the compatibility of the Mental Incapacity Bill with the European Convention on Human Rights. I enclose his opinion, which I ask you to put before the Committee as the submission from ALERT.


  1.  I am instructed to advise on behalf of ALERT as to whether any provisions of the latest version of the Mental Incapacity Bill ("MIB") are incompatible with the European Convention on Human Rights ("ECTIR").

  2.  The remainder of this Opinion is structured as follows. Pt 2 outlines the content of MIB material to the questions that I am invited to consider. It also foreshadows areas of potential ECHR concern. Pt 3 identifies the legal issues that I consider are relevant for consideration. Pt 4 analyses these issues and Pt 5 sets out a summary of my conclusions.



  3.  In general terms, MIB is concerned to ensure that persons lacking legal capacity to make decisions for themselves are provided with an effective decision-making process whereby decisions are made in their best interests.

  4.  It is, undoubtedly, the case that decision-making on behalf of incapacitated persons has generated much controversy. In particular, the decision of the House of Lords in R v. Bournewood Community and Mental Health NHS Trust, ex p. L [1999] A. C. 458 ("Bournewood") highlighted many of the deficiencies that existed (and continue to exist) in respect of protecting vulnerable people who lack the requisite relevant decision-making capacity.

  5.  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 MJIB are ECER compliant.

  6.  MIB focuses, for present purposes, on the following key areas: (a) the general authority to care for persons without capacity and restrictions on it including `advance decisions' (clauses 6-7 and clauses 23-25), (b) lasting powers of attorney (clauses 8-13 and Sch 1), and (c) powers of the Court (clauses 14-22).

  7.  Before outlining these areas it is important to bear in kind that, under clause 4(l)MTB:

      "Where under this Act any act is done for, or any decision is made on behalf of a person who lacks capacity, the act must be done or the decision made in the person's best interests."

  8.  The concept of a lack of "capacity" is addressed in clause I. By clause 1(1) "a person 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 of or a disturbance in the functioning of the mind or brain". Clause 1(2) clarifies that it is immaterial whether the impairment/disturbance is permanent or temporary.

  9.  Best interests is a judgment to be made in respect of acts or decisions in relation to persons lacking capacity for each of the key areas identified above. That concept is not defined in MID but clause 4(2) specifies the matters to which "regard must be had" in deciding what is in a person's best interests. These matters are:

    (a)  Whether the person is likely to have capacity in relation to the matter in question in the future.

    (b)  The need to permit and encourage participation by that person, or to improve his ability to participate, as fully as possible in anything done for and any decision affecting him.

    (c)  (So far as ascertainable) the person's past and present wishes and feelings and the factors which he would consider if he were able to do so.

    (d)  (If it is practicable/appropriate to consult) the views as to the person's wishes and feelings and as to what would be in his best interests of a number of identified persons.

    (e)  Whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of his freedom of action.

  10.  Plainly, this list is not exhaustive. Nor does not it appear to constrain the decision-maker. It contains important factors to which regard must be had. The extent, if any, to which clause 4 and its inclusion of particular factors relevant to `best interests' is in tension with the ECHR can best be determined by reference to the relevant acts or decisions that clause 4 underpins and the concept of `lasting power of attorney'. These I outline below.

  11.  It should also be noted that clause 4(4) provides that "In the case of anything done or a decision made by a person other than the court it shall be a sufficient compliance with [the best interests objective in clause 4(1)] If that person reasonably believes that what he does or decides is in the best interests of the person concerned."

Care of Persons without Capacity/Restrictions/Advance Decisions

  12.  Clause 6(1) M113 contains a general authority for any person to do an act when providing any form of care for another person' ("P") provided either that P lacks or that the person reasonably believes that P lacks capacity in relation to the matter in question and that it is, in all the circumstances, reasonable for that person to do the act. Clause 6(6) makes it clear that the general authority is subject both to other provisions of MIB and also to clause 4 on best interests (see above).

  13.  Clause 7 MIB places certain restrictions on the operation of the general authority. Thus: (i) neither force nor the threat of force may be used to secure an act which P resists and/or (ii) P's liberty of movement may not be restricted `unless the person reasonably believes that it is necessary to do so to avert a substantial risk of significant harm to P' (clause 7(1)).

  14.  Notwithstanding clause 7(1) it seems (see below) that a person with lasting power of attorney (or a Court-appointed deputy) could, under clause 7(2), veto action by a person using force or the threat of force with the intent of averting a substantial risk of significant harm to P unless such action fell under clause 7(3) (action necessary to avert death/serious deterioration whilst an Order is sought from the Court).

  15.  Materially, therefore, there has been introduced by somewhat convoluted provisions in MIB a new care regime that considerably restricts the very wide form of "necessity" that the House of Lords had endorsed in Bournewood.

  16.  Clauses 26-28 exempt certain specified forms of treatment/procedure (as, eg, infertility treatment) from the operation of MIB.

  17.  Clauses 23-25 endorse the concept of `advance decisions to refuse treatment. Where a person, aged 18 or over, possessing capacity has indicated a refusal of specified medical treatment at a later time and in such circumstances as he may specify and at a point when he lacks the necessary capacity to give consent then the specified treatment is not to be carried out or continued (see clauses 23(1) and 25(1)).

  18.  No liability is imposed on a person for withholding treatment/procedure if he believes that there is a relevant valid advance decision and that there are reasonable grounds for believing that such advance decision applies to the situation (see clause 25(3)). Conversely, there appears to be at least potentially civil liability for carrying out or continuing treatment unless a person does not know and has no reasonable grounds for believing that an advance decision exists which is valid and applicable to the treatment (see clause 25(2)).

  19.  There are no specified formalities (or system of registration) for the making of an advance decision and (see clause 23(2)) it may be expressed in broad terms or non-scientific language. It may apply to all forms of treatment although, by clause 24(5), an advance decision is not applicable to life-sustaining treatment unless P specified that his decision was not to apply to such treatment.

  20.  Clause 25(5) provides that nothing in an apparent advance decision precludes a person from providing life-sustaining treatment or doing any act reasonably believed to be necessary to prevent a serious deterioration in P's condition while a ruling as respects any relevant issue is sought from the Court.

Lasting Powers of Attorney

  21.  This new concept, replacing enduring power of attorney, is covered in MITB in clauses 8-13 and Schedule 1 MIB. It is, in company with all other powers under MJB, exercisable subject to clause 4 above (see clause 8(4)(a)). In other words, a person exercising lasting powers of attorney must act in P's best interests. It appears to be sufficient compliance if the donee of the power reasonably believes that what he does or decides is in the best interests of the person concerned (see clause 4(6)). However, unlike a person exercising the general power in clause 6 it does not, in all the circumstances, appear to have to be reasonable for the donee to do the act (cf clause 6(1)(b)).

  22.  Essentially, the concept enables a person (the donor) to create a power of attorney in another person (the donee) that enables decisions to be made on behalf of the donor by the donee as to P's personal welfare or specified matters concerning P's personal welfare and P's property and affairs or specified matters concerning P's property and affairs and which includes authority to make such decisions in circumstances where P no longer has capacity (see clause 8(1)).

  23.  The different species of requirements for valid execution of lasting powers of attorney are contained in clauses 8-9 and Schedule 1. Briefly:

    (a)  There must be compliance with a prescribed form, though immaterial deviation is permissible (Schedule 1 paras 1-3[128]

    (b)  There are requirements of age/status as between donor and donee (clause 9). In general, however, any person over 18 may become a donee provided (at least in relation to matters concerning the donor's property and financial affairs) that they are not (or do not become) bankrupt.

    (c)  There are also general requirements as to registration (Schedule 1 Pts 2-3).

  24.  Clauses 10-11 contain provisions relevant to the scope of a continuing power of attorney. In particular, the donee is not authorised use or threaten force to secure the doing of an act which P resists or to restrict P's liberty of movement whether or not P resists unless P lacks or the donee reasonably believes that P lacks relevant capacity and the donee reasonably believes that it is necessary to do the act to avert a substantial risk of significant harm to P.

  25.  Clauses 21-22, in particular give certain powers to the Court in relation to the validity and operation of lasting powers of attorney. including exercising powers of supervision over the conduct of the donee and cancelling registration.

  26.  Other provisions of relevance include the creation of an officer known as the Public Guardian (clause 47) and the significant responsibilities that he has in respect of lasting powers of attorney (see clause 48) including the supervision of donees of such powers and general control of the register (with powers of cancellation).


  27.  The Court has supplementary power under MIB to make declarations (clause 15) and other Orders in respect of capacity and advance refusals (clause 37). It may make decisions in respect of a person's health and welfare or appoint a deputy although, by clause 16(4)(a)) the Court's decision over that of a deputy is accorded statutory preference.

  28.  Clause 26 does not allow decisions to be made on behalf of an incapacitated person in respect of a number of specified matters—none of them, however, include the decision to die.

  29.  By clause 30 the Lord Chancellor (sic) has power to prepare a Code of Practice on what constitutes capacity and how persons with relevant functions under MIB should act.

  30.  The relevant "Court" under MIB is the Court of Protection (see clause 34). Access to the Court is governed by clause 40 which, generally, requires leave to be given for applications to be made to it. The matters to which the Court may have regard in giving leave are set out in clause 40(3) and include sufficient connection with the subject matter and reasons for the application. No leave is required (see clause 40(1)) for an application to the Court by or on behalf of a person who is alleged to be (or is) without capacity, by the donor or donee of a lasting power of attorney to which the application relates, by a Court appointed deputy, by a person named in an existing Order, or by a person with parental responsibility for such person if under 18.


  31.  MIB gives rise to three main areas of ECHR concern. Briefly stated, they are in my view those issues relating to:

    (a)  The right to life contained in Article 2.

    (b)  The right to protection from inhuman and degrading treatment under Article 3.

    (c)  The right of access to a court provided for in Article 6.

  32.  Put shortly, and as highlighted above, MIB contains a series of provisions that are ostensibly designed to put persons lacking capacity (so far as is possible) on a par with those who possess autonomy. The difficulty with this kind of endeavour is that, unless the statutory mechanisms are very carefully drafted, there is very real potential for abuse, exploitation and violation of fundamental Convention rights.

  33.  In my view, for the reasons set out below, there are Convention concerns as to the drafting of MIB although it is an improvement on the version on which I previously advised.


  34.  The most directly relevant issues of law seem, therefore, to me to be reducible to the following general questions:

    (a)  Are there any provisions of MIB that are, at least potentially, incompatible with Article 2 ECHR (taken by itself or in conjunction with other ECHR provisions, most notably Article 6)?

    (b)  Are there any provisions of MIB that are, at least potentially, incompatible with Article 3 ECHR (similarly considered)?

    (c)  Are there any provisions that are potentially incompatible with any other provision of the ECHR?

  35.  I will address these general questions in turn.



The General Position under Article 2

  36.  Article 2.1 ECHR provides (materially) thus:

    "Everyone`s right to life shall be protected by law. No one shall be deprived of life intentionally . . . "

  37.  Article 2 ECHR, therefore, contains a negative restraint on the State but also requires the State to take active steps for the protection of life: a so-called positive obligation.

  38.  The locus classicus is the decision of the Strasbourg Court in Osman v United Kingdom (1998) 29 EHRR 245. The Court stated that:

      "115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of lfe, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life . . ."

      39.  A person possessing the requisite capacity to make decisions for themselves may refuse to be treated. However irrational or otherwise unreasonable the decision is, it must be respected.

      40.  But the position is different in relation to persons lacking legal competence. There, the position in law is that a doctor may treat a patient who is incapable of giving consent, provided that the treatment is in the patient's best interests.

      41.  In domestic law there is a strong presumption that medical practitioners should take all steps capable of preserving human life. But, according to House of Lords authority in Airedale NHS Trust v. Bland [1993] A. C. 789, 867 ("Bland"):

      "The doctor who is caring for .  .  . a patient cannot .  .  . be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient's life.

      42.  Importantly, it has also been held that where the continuance of medical care of a patient in a permanent vegetative state would not be in his best interests, there was no breach of Article 2 if that care was withdrawn (see: NHS Trust A v M, NHS TrustB v H [2001] 2 W.L.R. 942) ("M& H").

      43.  There is, then, if M&H (and Bland) are right a crucial difference between acts and omissions. A positive act that causes a person's death is murder. But the position is different where death is caused by omission or where the primary purpose is not to cause death (see, especially, in this respect Bland).

      44.  Many do not agree with the ratio in Bland and M&H and with the analytic distinction between acts or omissions in the present context. As Butler-Sloss P observed in M&H (at p. 949, paragraph 19) "the question of discontinuing artificial nutrition and hydration to a patient in a permanent vegetative state has not yet arisen in the European Court of Human Rights. . ."

      45.  However, in that context Article 2 was, fully, analysed in M&H as follows:

      (a)  Article 2 clearly constitutes a negative obligation on the State to refrain from taking life intentionally. It also imposes a positive obligation on the State to give life-sustaining treatment in circumstances where, according to responsible medical opinion, such treatment is in the best interests of the patient. It does not, however, impose an absolute obligation to treat if such treatment would be futile.

      (b)  An omission to provide treatment by a medical team will only be incompatible with Article 2 where the circumstances are such as to impose a positive obligation on the State to take steps to prolong a patient's life. (Butler Sloss P clarified that her judgment was only addressing the situation where treatment was to be discontinued and was not concerned with acts by doctors or other members of the clinical team which might have the effect of shortening life).

      (c)  The quality of life may, under Article 2, be relevant to the clinical assessment of whether it is in the patient's best interests for treatment to continue but does not form part of the question whether this is an intentional deprivation of life within the meaning of Article 2.

      46.  For the purpose of this Opinion and for the purpose of analysing the deficiencies in MIB, I must take the law to be as stated in M&H


      47.  The prohibition against taking active steps to end life is one that is enshrined in Article 2 ECHR. A person may decide to end his or her own life but it is certainly consistent with Article 2 that the State does not facilitate third party assistance. The decriminalisation of suicide may be said to reduce suicide by encouraging individuals to seek help. However, the prohibition against assisting suicide contained in s. 2(1) of the Suicide Act is entirely lawful because it operates to prevent the crime of murder.

      48.   In Pretty v United Kingdom (Application No 2346/02) the European Court of Human Rights made it clear that mercy killing by a third party, albeit at the behest of the person affected, was legitimately prohibited by the State under Article 2 ECHR. The Strasbourg Court observed thus:

      "39.  The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that the "right to life" guaranteed in Article 2 can be interpreted as involving a negative aspect .  .  . it is unconcerned with issues to do with the quality of life or what a person chooses to do with his or her life .  .  . nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.

      40.  The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. It is confirmed in this view by the recent Recommendation 1418[129].  .  .

      41.  The applicant has argued that a failure to acknowledge a right to die under the Convention would place those countries which do permit assisted suicide in breach of the Convention

      [E]ven in circumstances prevailing in a particular country which permitted assisted suicide, that would not assist the applicant in this case, [with] the very different proposition—that the United Kingdom would be in breach of its obligations under Article 2 if it did not allow assisted suicide .  .  ."


      49.  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."

      50.  Self-evidently, in order to obtain a hearing by a Court there must be access to that Court. The right of access to a Court is, therefore, intrinsic to—or necessarily implicit in—the express rights guaranteed by Article 6: see Golder v UK (1975) 1 EHRR 524. It is also well established that even a temporary impediment on access may violate this right.

      51.  Clearly, the right to protection of life under Article 2 (in both the positive and negatives senses identified above) and/or the right to a Court hearing for the determination of that civil right and the obligation not to be assisted to kill oneself are embraced by (respectively) the positive obligations under Article 2 and the due process rights under Article 6.


      52.  In my opinion there are at least two major deficiencies in MIB which contravene the obligations enshrined in Article 2 taken in conjunction with the right to access to a Court under Article 6.

      53.  The deficiencies are in relation to: (a) the extensive power conferred upon persons under the general authority and, in particular the powers conferred on the donee of lasting powers of attorney, and (b) MIB's treatment of advance decisions to refuse treatment coupled, in each case, with the limitations on access to the Court contained in MIB clause 40.


      54.  The difficulty with MIB, in this respect, is that its provisions—taken together—fall short of the likely content of the positive obligation in Article 2 to give practical and effective protection to the right to life of a person without capacity and/or to the right to determination by a Court of the civil right/obligation vested in such person not to have his/her death assisted by a third party by positive acts.

      55.  Lasting powers of attorney enables the person on whom the power has been conferred to exercise a relevant power provided, only, that he or she reasonably believes the donor to be without the requisite capacity (see clauses 8(4)(a) and 4(4)). There is no proposed statutory check on the assumed exercise of power by the donee beyond the clause 40 right of access to the Court and general supervision of the donee by the Public Guardian (see above and clause 48(1)(c)-(d)). So, if the donee has an unreasonable (and, perhaps, unjustified) belief in a donor's lack of capacity there is at least potential scope for abuse of power. Nor is there any specific statutory threshold by which the donee's reasonable belief falls to be tested at the time of the asserted assumption of belief

        (a)  Armed with at least an asserted reasonable belief in the donor's incapacity, the donee may, amongst other things, refuse consent (at least where an advance refusal expressly authorises) to treatment or procedure necessary to sustain life

      56.  Conversely, there is no obvious statutory obligation on a donee (or anyone else) under MIB to seek/provide life saving treatment on behalf of an incapacitated donor or on any person to take such steps in respect of a person lacking capacity who is not a donor.

      57.  Nor, as I read the combination of clauses 6-7 may action be taken to avert a substantial risk of significant harm to a donor (see clause 6(1)) in circumstances where the donee/deputy objects (see clause 6(2)) and where the limitation in clause 6(3) (temporary life sustaining treatment or act to prevent serious deterioration in condition whilst Court Order sought) does not apply. It is not immediately obvious that the concept of "substantial risk of significant harm" in clause 6(1) is synonymous with the limitation in clause 6(3) even were the person seeking so to act about to seek a Court Order. So, it is distinctly possible that MIB precludes acts (if contrary to a donee's directions) which are reasonably believed to be necessary to avert a substantial risk of significant harm to the donor but which do not threaten immediate death or immediate serious deterioration in condition. In such circumstances, even if failure to act could constitute a potential threat to life the donee could prevent the act from being undertaken. In any event, it would be necessary for the person seeking to benefit the incapacitated person to seek a Court Order to be empowered to do anything to "trump" the donee's wishes. Even then, such person may not (see clause 40) have an immediate right of access to a Court but might have to seek the Court's permission to act at all.

      58.  In making decisions a donee is, generally, bound by MIB clause 4. But the difficulty here is, of course, (and it applies generally to any person exercising general authority under clause 6) that the assumed past and present wishes and feelings of the donor or others (see clause 4(2)(c) and 4(2)(d)) as to what may be in the donor's best interests may be very much contrary to the donor's true best interests: such persons may, for example, be temporarily suicidal or influenced by factors which have little to do with his or her general welfare. Similarly, they are only factors to be taken into account. But, the donee (and any other person exercising general authority) has a general discretion to override those views: in particular all that the donee has to show if called upon is that he reasonably believed that what he was consenting to or refusing was in the donor's best interests. It is unclear why the donee of lasting powers of attorney is given greater licence to act contrary to P's best interests than other persons exercising general authority where it must, at least, be shown that the action taken is reasonable.

      59.  Having regard to clause 4 two things are clear. First, the statutory criteria 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. Secondly, the legal threshold at which a donee is empowered to make life or death decisions on behalf of the donor is opaque, subject to potential abuse and not subject to effective control by the Court prior to the action being taken.

      60.  Given (see M&H above) the fact that "best interests" is integral to the positive obligation on the State intrinsic to Article 2 to preserve life and given, also, that this concept is also integral to the negative obligations contained in Article 2 there are several vices in MIB. There are few safeguards to prevent a donee acting in a way that is truly antithetical to a clinical judgment of where a patient's best interests lie. The presumed wishes of a person (even their actual wishes) have only a tangential connection with what is in their best interests. To equate the two is to confuse best interests and autonomy. To allow a donee to make discontinuance of treatment decisions without even having, on an objective basis, to achieve the best interests objective at all is ostensibly in direct conflict with the requirements of Article 2 as enunciated in M&H. Finally, there is no obvious statutory control so as to ensure compliance with the positive obligations in Article 2.

      61.  These deficiencies are both systemic and procedural. The procedural deficiencies are where Article 6 ECHR engages. 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 judgment.

      62.  Article 2 rights and the obligations inherent in domestic criminal law are plainly "civil rights and obligations" within the ambit of Article 2. Yet, the only persons who have (material) automatic access to a Court (that is, without needing permission) are the donee of lasting powers of attorney or the person lacking (or alleged to be lacking) capacity: see clause 40(1). But it is, in this context at least, the danger of exploitation and insufficient protection by the donee (and the concomitant vulnerability of the donor) that may make it essential for the donor's civil rights and obligations to be reviewed by the Court.

      63.  There is no obvious mechanism for the Court to become involved. Certainly, the Court can become involved and probably (but not inevitably) would if application were made to it. But there is no mechanism for the Court to become involved at all. There is no compulsion on a donee 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. 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.


      64.  It is, undoubtedly, the case that a person of adult age may make (if he/she has the requisite legal capacity) decisions to refuse life saving treatment even if that decision is irrational or contrary to that person's best interests: of the many cases see, eg, Re T [1992] 1 WL.R. 782. This is because, at least in general terms, the principle of autonomy or self-determination (provided that it does not affect the rights of other persons) "trumps" that of protecting a person with capacity from acting contrary to their best interests.

      65.  So it is that it has sometimes been thought to be merely a reflection of the autonomy principle for a person to make a "living will" or an "advance directive" or (in the language of MIB) an advance decision to refuse treatment: in other words, to make future provision for refusing life saving treatment at a time when they no longer possess capacity.

      66.  The difficulty with the concept of advance refusal as addressed in MIB is that there are no obvious safeguards for ensuring that the autonomy principle is being safeguarded or the best interests principle eroded. Put more concretely, it is essential, for protecting Article 2 rights, to ensure that a person who has made an advance decision to refuse treatment possessed the requisite autonomy at the time of making the refusal and has not changed his or her mind since.

      67.  If those elementary matters are not required to be carefully established prior to the enforcement of an advance decision to refuse treatment there will be a necessary violation of the positive and negative obligations inherent in Article 2 because the true "best interests" of the patient will never fall for consideration, it being assumed that the advance refusal reflects an expression of autonomy.

      68.  To my mind the following deficiencies appear from the above-mentioned provisions of MIB:

        (a)  where are no formal requirements for establishing advance refusals. Nor is there a system of registration comparable to that created for lasting powers of attorney,

        (b)  The Court has power to examine the validity of an advance refusal. But there is no mechanism for challenge or obvious standing under clause 40 without the need, at least generally, for the Court's leave to make the application.

        (c)  In such circumstances it may be difficult, in the extreme, for an advance refusal to be the subject of successful challenge many years after it had been made.

        (d)  There are obvious dangers of exploitation of a vulnerable person who may be coerced into making an advance decision to refuse treatment. Further, the evidence needed to establish such advance refusal may often be dependent upon the oral testimony of those with a vested interest in contending that there has been such advance refusal. Advance refusal (see above) has considerable legal effect in that liability is imposed for not implementing it where there are reasonable grounds for believing that it applies to the circumstances of the case (clause 25(2)). Further (clause 25(3)) no liability is imposed for implementing an advance refusal where it is reasonably believed to apply. So, a life or death decision may be made on the grounds of a of a document many years old which on the most tenuous evidence is reasonably believed to apply.

        (e)  Nothing in MIB implies, still less compels, any particular investigation of the circumstances of an advance decision to refuse treatment even though circumstances may have changed over the intervening years, another (but concealed) document made revoking the first or the fact of having made the advance refusal forgotten.

      69.  The above represent, in my opinion, deficiencies in an area where protection of incapacitated persons lies at the heart of the right to life under Article 2. The dangers of the proposed statutory regime for implementing advance decisions of refusal of consent to treatment contains no mechanism whatever for ensuring that the positive obligation in Article 2 protection are complied with, namely (see above) the obligation on the State to give life-sustaining treatment in circumstances where, according to responsible medical opinion, such treatment is in the best interests of the patient. An advance refusal will, under the MIB regime, remove this obligation because it will be seen as an expression of autonomy that, in some fashion, immunises the State from having to consider best interests at all.

      70.  In my opinion MIB fails, in the area of advance refusal, to legislate so as to protect incapacitated persons from having life saving treatment undertaken in their best interests as Article 2 requires (even on domestic case-law). It fails to do so because it legislates on a flawed premise—the premise being that the most shaky evidence for an advance decision to refuse treatment no matter when alleged to have been made and without the need to establish the specific circumstances in which it was made. Is, in practice, presumed to be a valid expression of autonomy for all time. In my view this is a breach not merely of Article 2 but also of the due process safeguards contained in Article 6. There is, in most circumstances, no "right of access" to the Court for determination of validity of an advance refusal (see clause 40). On the other hand there is potential civil liability for (at least in general terms) not responding positively to perhaps potentially weak evidence suggesting the existence of an advance decision and, at the same time, an immunity from liability for responding positively to such evidence.

      71.  In Convention terms this is, I consider and advise, a difficult position for the legislature to adopt.


      72.  Article 3 ECHR provides as follows:

      "No one shall be subjected to torture or to inhuman or degrading treatment and punishment."

      73.  This is, like Article 2, an absolute Convention obligation. Here, we are not concerned with either torture or punishment. The question is whether, taken alone or in conjunction with Article 6, MIB causes or permits the possibility of inhuman or degrading medical treatment.

      74.  The concern in respect of Article 3 ECHIR is, perhaps, merely a different way of formulating the Article 2 and 6 concerns (above). 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. This arises both as a matter of structure and also in terms of the absence of adequate procedural protection. I doubt, though, if the Article 3 concerns on this score add much to the analysis set out above.


      75.  A particular concern arises in respect of clauses 7 and 10. These prevent, amongst other things (and subject to qualification), "the use or threat of force to secure the doing of an act which Presists" (underlining added).

    76.  P is, by definition, the person lacking capacity. But, of course, the entire rationale for decision-making by a person without capacity is that such person is incapable of making an informed decision for himself or herself.

      77.  So, if that is right, it must follow that a person lacking capacity is legally incapable of resisting in a meaningful sense. In Convention terms this means that a discrimination is necessarily embedded into MIB, namely as between those patients lacking capacity who, nonetheless, articulate resistance on the one hand and those, on the other, who may be incapable of communicating resistance (perhaps because of paralysis or other disability) or who simply do not resist This represents, on the face of it, a permitted intrusion of privacy in the case of one type of incapacitated person which is denied to another type of incapacitated person contrary to Article 8 ECHR. There is no obvious objective justification for this differential treatment.


      78.  My primary conclusions are as follows:

        (a)  MIB is incompatible with Article 2 taken in conjunction with Article 6 ECHR because it fails to comply with the State's obligations under Article 2 to provide practical and effective protection of the right to life.

        (b)  In particular, the concept of "best interests" in MIB is defined by reference to criteria that are, at least primarily, relevant to autonomy as opposed to best interests. The decision-making powers of the donee of the lasting powers of attorney are made by reference to such criteria but leaving an area of judgment to the donee that is neither statutorily defined nor protected by access to the Court within the meaning of Article 6. Similar concerns arise in respect of exercise of the general authority.

        (c)  The machinery of recognition and implementation of advance decisions to refuse treatment are similarly contrary to Article 2 because they provide wholly inadequate protection for safeguarding the best interests of persons entitled to protection under Article 2 at the time that life saving medical treatment falls to be considered.

    (d)  There are also concerns, under Article 3, in respect of the matters itemised under Article 2 (above). But these concerns do not add to the analysis.

        (e)  Article 14, protecting as it does against discrimination in the enjoyment of Convention rights, appears to discriminate against those incapacitated persons who can communicate objection to certain proposed conduct (see clauses 7 and 10) and those who cannot. Such discrimination is neither logical nor (therefore) objectively justified under Article 14.

      79.  I shall be happy to assist further if and when required.

    Richard Gordon QC

    August 2003

    128   The Court has certain powers if satisfied that the parties intended to create a lasting power of attorney (see Schedule 1 paragraph 3(2)). Back

    129   This is a reference to the Council of Europe's Recommendation 1418 (1999) on the Protection of Human Rights and the Dignity of the Terminally Ill and Dying. Back

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