Joint Committee on the Draft Mental Incapacity Bill Written Evidence

137.Memorandum from CARE (MIB 1176)


  1.1  CARE is a charity representing over 100,000 Christian supporters from all denominations throughout the UK. CARE's Public Policy Department acts as a think tank on ethical issues in biology and medicine, as well as in education and social issues. CARE also briefs supporters and Parliamentarians as relevant issues are considered in Westminster, Brussels and the devolved Parliaments and Assemblies.

  CARE has been following the issue of Mental Incapacity since the original Law Society discussion document of January 1989 and the subsequent Law Commission Consultation Paper of April 1991. Since then CARE has regularly submitted written evidence and discussed these matters at meetings with officials and Ministers. CARE has been a participant at recent seminars at the Lord Chancellors Department. In addition, CARE has made submissions at a number of previous stages in the process which has led to this consultation, most recently in June 2002 on the guidance leaflets which were "setting the scene for new legislation". This reply is not confidential.


  2.1  CARE recognises that there are deficiencies and problems with the current legal framework and acknowledges the substantial work undertaken by the Department for Constitutional Affairs and its predecessor in considering some of these issues. CARE believes that persons who lack capacity are disadvantaged and vulnerable, and deserve the highest level of protection and support which an advanced society can give to them.

  2.2  CARE acknowledges the differing pieces of historic legislation currently applied to these issues and recognises that an overall, rather than a piecemeal approach, would be of benefit. However, any new procedures should be flexible, easy to use and financially beneficial while providing strong safeguards for the more vulnerable members of society.


  3.1  CARE wants to involve patients in decisions about their own healthcare as much as possible, and therefore supports the principle of advance directives to the extent that they can extend patient involvement into decisions after the onset of incapacity. However there are dangers in the "piece of paper" approach. By the time an individual's incapacity triggers an advance directive, the situation may not be precisely what was envisaged, new treatments may have come into being, and most important of all, the healthy do not make their choices about healthcare in the same way as the sick. Health professionals cannot know whether the individual might have "changed their mind", and as capacity is required to revoke an advance decision, the incapacitated person is trapped in the consequences of a previous decision. Advance decisions will force doctors and nurses to practise with one hand tied behind their backs, and should not be given the further force of statute law.

  3.2  CARE has a second area of concern—the possibility of advance directives, which have statutory force, becoming a back door route into euthanasia. Advance directives, while having some force in law, cannot be used to force a doctor to do something which would otherwise be unlawful. However the worldwide euthanasia movement has been at the forefront of promoting the use of advance directives. For some who support euthanasia, the acceptance of such documents in statute law, complete with a request for the withdrawal of nutrition and hydration, are an essential step in the campaign to change the law. CARE is concerned that such slow deaths could be enforced under the proposed legislation, under the terms of certain advance directives, or at the order of the donee of an LPA.

  3.3  The House of Lords Select Committee on Medical Ethics reporting in 1994 opposed giving advance decisions greater legal force as 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". In its legislation on mental incapacity (2000), Scotland has not given Advance Decisions statute force and is managing well without this. CARE holds that all the proposals on advance decisions should be removed before legislation.


  4.1  The concern just highlighted could be eliminated, and some material on Advance Decisions could perhaps be left in, if the Bill were to incorporate new legislation to prevent the withdrawal of food and fluid with the intention of ending life or hastening its end.

  4.2  This issue has been the subject of much discussion in theHouse of Lords during the recent debate surrounding the Patients' Protection Bill as tabled by the Baroness Knight of Collingtree. The Committee should consider if the current Bill would benefit from the wording of the recentamendment tabled by both Baroness Knight and Baroness Finlay of Llandaff to the Patient Protection Bill, Amendment No 1 (4 July 2003):


  (1)  No offence will have been committed under section 1(1) if any of the requirements in subsections (2) and (3) below are met.

  (2)  The patient—


    requests the withdrawing or withholding of sustenance;


    does not give consent to the provision of sustenance; or


    does not give consent to the recommended intervention to provide sustenance.

  (3)  In the case of a patient who lacks capacity to consent, consultation by the doctor in charge with the next of kin or legally appointed representative has taken place, and the provision of sustenance—


    is likely to cause significant discomfort to the patient without improvement in his condition, or worsen his illness or debility; or


    is likely to result in no improvement in the illness or debility of a dying patient.

  (4)  For the purposes of subsection (3) a patient lacks capacity if he is unable to understand in broad terms the nature and effect of the decision to withdraw or withhold sustenance.

  4.3  New legislation should enshrine the prohibition of intentional killing by omission (withdrawal of food and fluids from the non-dying). CARE's concerns at (3) about Advance Decisions would then substantially be met.


  5.1  CARE welcomes those excluded decisions listed in Clauses 26-29, but believes that because they are central health and family issues, the following should be added:

    —  Termination of pregnancy.

    —  Sterilisation.

    —  Long term depot contraception.

  These are issues with permanent consequences which are very important to the health and social well being of some incapacitated people. The medical and ethical aspects need addressing specifically. Detailed consideration might be provided for in the Codes of Practice described in Clause 30, if there were specific mention of the concepts in "Excluded decisions".


  6.1  CARE's particular concerns with the proposed legislation are around healthcare issues, and while welcoming the concept of the new Court of Protection, CARE recommends that judges and staff involved with the Court should receive specific training in healthcare ethics and practice. This training would be similar to the Judicial Studies Boards organised by the Lord Chancellor's Office for members of the judiciary. This latter point is particularly important, as legal officials must be fully aware of the practical consequences of the decisions they take. They need to know what actually happens in the real world of health and social services.


  7.1  CARE is grateful for the opportunity to make this response, and is willing to help with oral evidence if requested.

September 2003

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