Church of England Community and Public
Response to the Department of Constitutional Affairs
Draft Mental Incapacity Bill
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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