125.Memorandum from Right to Life (MIB
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.
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 previouslythus 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 statedthere
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