Joint Committee on the Draft Mental Incapacity Bill Written Evidence

125.Memorandum from Right to Life (MIB 1017)

  We welcome a legal framework for decision-making in the care of the elderly, embracing financial and health and welfare interests. However, we consider that some of the clauses and concepts in the Draft Mental Incapacity Bill could weaken the rights of the elderly and mentally incapacitated, particularly in relation to the right to life.

  In introducing our Submission we would stress that the European Convention on Human Rights recognises the right to life as the fundamental right, the condition of all other rights.

  Article 2 of the Convention states

    "Everyone's right to life shall be protected. No-one shall be deprived of life intentionally . . ."

  This requires of the State a positive obligation to take appropriate steps to protect innocent citizens from any act or omission deliberately intended to deprive them of life.

  We urge, therefore, that the Committee should take into account the following points which we consider would jeopardise the healthcare of the elderly and mentally incapacitated.


Best Interests

  The definition of "Best Interests" in the Bill and explanatory notes confuses wishes and autonomy with the actual well-being of patients. In parts the drafting is so vague that it could mean that a patient's wishes might include a chance remark he or she has made while watching a television programme. This would be allowed under the guise of "autonomy".

  We urge that objective medical criteria should be written into the Bill to define best interests. Where possible this should include the restoration and maintenance of health. Where no cure is possible, the Bill should require control of symptoms (including pain) and basic care, including assisted food and fluid (hunger is not an illness).

  As the Bill stands there is nothing in it to protect patients from relatives and others who are motivated by self-interest. Proper protection must be provided as far as possible by objective criteria.

Powers of Attorney and Proxies

  RTL agrees with the concepts of Powers of Attorney and Proxies. However, any action taken must be in accordance with the Best Interests of the Patient. No Proxy or person with a Power of Attorney should be permitted to authorise the withholding or withdrawal of treatment with the purpose of ending life. At the same time we recognise the validity of the withdrawal of treatment (including assisted food and fluid) if the decision is made because the treatment is burdensome or in cases where it is known to be futile. We would also add that in our experience relatives and friends who are appointed as proxies by patients are usually extremely responsible regarding the health care of patients.

  Nonetheless, doctors, nurses or others (including relatives) concerned about the conduct or behaviour of a Proxy or somebody with Powers of Attorney must have speedy access to appeal. We recommend that a System of Appeal should be written into the Bill rather than those concerned having to apply to the Court of Protection for permission to appeal as is proposed in the current Draft Bill. As the Bill is drafted Senior Counsel has advised that it contravenes Article 6 of the European Convention on Human Rights which safeguards all citizens access to the courts.

Advance Directives or "Living Wills"

  This matter was considered in depth by the House of Lords Select Committee on Medical Ethics (1994), the Report of which both the Government and the Conservative Party claim to support. The Committee took evidence from the British Medical Association, the Crown Prosecution Service, the Royal College of Nursing, The National Hospice Council, the Law Society, and the Law Commission among others.

  In its Report the Select Committee stated that there was no definitive case making all advance directives legally binding. Although it welcomed the use of advance directives, it strongly recommended that no legislation should be introduced to give them greater legal force.

  They listed a number of problems and difficulties which could arise through doctors being compelled to follow advance directives regardless of the circumstances or the outcome. They also pointed out that patients could be deprived of the most up-to-date treatment, developed after they had signed advance directives. Other problems they considered were advance directives made by patients under pressure, living wills made by patients who had not considered the particular illness or affliction doctors were treating, directives made many years previously—thus not allowing for a change of mind.

  We fail to understand why the Government should be so insistent upon making Advance Directives legally binding, thus breaking their promises to support the recommendations of the House of Lord Select Committee. We urge that the Standing Committee should challenge the Government on its claim that according to "case law" advance directives are legally binding and that doctors failing to observe them could be guilty of assault. The Government should be required to cite a "definitive" case making all advance directives legally binding, particularly as the House of Lords Select Committee on Medical Ethics stated—there had been no such "definitive case".

  The results of a survey conducted by ORB (Opinion Research Business) among 986 doctors in April 2003 showed that 71% would be unwilling to follow an advance directive in certain circumstances. The problems they listed reflected the problems given by the House of Lords Select Committee as to why they opposed Statute Law which would make advance directives legally binding.

  ORB has submitted the results of the survey on the matter of Legally Binding Advance Directives to the Standing Committee and we urge that the members should take it into account. We also urge the Standing Committee to follow the recommendations of the 1994 Lords' Committee and reject the clauses in the Draft Mental Incapacity Bill relating to advance directives. We repeat: both the Government and the Conservative Party have claimed to support the recommendations of the Select Committee. As the Bill stands it could seriously jeopardise the rights of the elderly and the mentally incapacitated.

  Finally, we would point out that the ORB survey showed a considerably higher proportion of doctors who support euthanasia and assisted suicide would follow advance directives regardless of the circumstances than was the case among doctors opposed to such practices.

The Withdrawal of Assisted Food and Fluid with the Purpose of Causing Death

  The present draft of the Mental Incapacity Bill would allow the withdrawal of assisted food and fluid with the purpose of ending the life of a mentally incapacitated patient. This is "achieved" by describing assisted food and fluid as "treatment". However, thirst and hunger are not diseases. They are natural physical reactions experienced by the whole of mankind and to ignore them is an act of sheer cruelty.

  We urge that the standing Committee should include the Baroness Knight's Patients' Protection Bill as a clause in the Mental Incapacity Bill; this, with the amendments tabled by Baroness Knight of Collingtree and Professor Baroness Finlay of Llandaff, would follow good medical practice as followed in the Hospice Movement.

September 2003

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