Joint Committee on the Draft Mental Incapacity Bill Memoranda

Church of England Community and Public Affairs Unit

Response to the Department of Constitutional Affairs

Draft Mental Incapacity Bill


  1. The terms of reference of the Church of England's Community and Public Affairs Unit require it to assist the Church in making a constructive and informed response to issues facing contemporary society. The Unit reports to the Archbishops' Council and, through it, to the General Synod.

  1. The Community and Public Affairs Unit welcomes the consultation on the draft Mental Incapacity Bill, though it deeply regrets the brevity of the consultation period, and its timing to coincide with the summer recess.

  1. This response is to question four: Are the proposals in the draft Bill workable and sufficient?and only in respect of healthcare at the end of life.



  1. No.

  1. Clause 1(2) is most worrying in relation to healthcare at the end of life, because the distinction between permanent and temporary impairment or disturbance is crucial when a life or death decision has to be made.

  1. Clause 23(2) is also worrying for failing to make a distinction between a clear, written directive about withholding or withdrawing treatment, and what may be no more than a vaguely expressed, and inadequately reported, general wish.

  1. If it is established that loss of mental capacity is permanent, then clear, written advance directives to withhold or withdraw treatment should normally be respected. Few medical conditions are as clear-cut as the law might wish. It needs to be recognised that, as with ordinary wills, indolence and inertia can mean that even clear, written directives are not always up to date. There must still be room for medical judgement and scope for flexibility, therefore.

  1. In the case of patients in the vegetative state the Royal College of Physicians advocates that patients should be observed for 12 months after head injury (traumatic brain injury) and six months after other causes, before the state is judged to be permanent. Only then should discussions of withholding or withdrawing treatment begin. Under current legislation the final decision has to come before the courts. The most important factor is time; the RCP guidance points out that there is no hurry to diagnose these patients and if there is any doubt, more time should be taken before a final decision is made. The Mental Incapacity Bill should require that sufficient time is given for an unhurried consideration of all the issues, so that the decisions made are as right as they can be. Guidance on the minimum time needed to establish permanent mental incapacity should be written into the Bill.

  1. When loss of mental capacity is not judged to be permanent, there is no case for bringing a life-threatening advance decision into effect. The best interests of the person concerned must lie in the restoration of as much mental capacity as possible. Clauses 4(2) (a)-(b) refer to this and, if given due weight, could conflict with an advance decision were it not for the phrase "at that time" in Clause 23(1)(b). This is the point at which the failure to distinguish between permanent and temporary incapacity could open the door to euthanasia. While the conscious refusal of treatment is a right and does not of itself constitute euthanasia, the preliminary specification of conditions under which treatment would be refused might count as euthanasia if the condition was not a permanent one.

  1. No one can fully know in advance how he or she will feel when a crisis occurs. Although opinion polls typically show that the general public is 80% in favour of voluntary euthanasia, only about 3% of the terminally ill favour it. The 80% figure implies that there is a widespread fear of the dying process, and lack of confidence in the medical profession to manage that process well. Individuals should, therefore, be allowed the chance consciously to reconsider a decision if there is a reasonable likelihood of their being able to do so.

  1. The opinion poll statistics may also be symptomatic of a society that dreads loss of personal control and the gratitude to others demanded by an unsought-for dependency on them. The 3% figure indicates that when it comes to it, these fears subside, or are subsumed under other concerns, perhaps such as the desire to journey well to death, to effect reconciliations, settle one's affairs, or just to "live until one dies" (Cecily Saunders).

  1. Love is at the heart of the Christian message. The source of love is God and no created being is separated from that love. In human relationships Christian love always puts the well being of others above one's own. This paradigm of love undermines the perspective that personal, individual autonomy can trump other moral claims, such as the good of all, or the consciences of those involved in fulfilling a person's wishes. Human beings are, simultaneously, both individuals and in community, and moral decision making has to take this dynamic into account.

  1. In summary, our overriding concerns are: with the failure of the Bill to distinguish between temporary and permanent mental incapacity; with its failure to distinguish between clear, written advance directives, and more vaguely expressed general wishes; and with its lack of a framework to allow for the sometimes messy and always unpredictable dynamic of human decision making at the end of life.


Rt Rev'd Tom Butler

Bishop of Southwark

Chair, Community and Public Affairs

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Prepared 13 October 2003