ALL-PARTY PARLIAMENTARY PRO-LIFE GROUP

SUBMISSION TO THE JOINT COMMITTEE ON THE DRAFT MENTAL INCAPACITY BILL

AUGUST 2003

  SUMMARY

1.      The All-Party Parliamentary Pro-life Group upholds the sanctity of human life from conception until natural death. Every human being, regardless of mental incapacity, possesses a fundamental worth and dignity for as long as he or she is alive. Human worth and dignity do not depend on acquiring and retaining some particular level of understanding or capacity for choice or for communication. Recognition of the fundamental worth and dignity of every human being is the indispensable foundation of justice in society.

2.      We acknowledge the need to reform the law as it relates to those who are mentally incapacitated.

3.      Mental incapacity legislation must not be the Trojan horse through which assisted suicide and euthanasia are introduced. We are deeply concerned that the Draft Mental Incapacity Bill would weaken the prohibition against assisted suicide and euthanasia.  

4.      The understanding of the pivotal concept of ‘best interests’ must include objective, substantive requirements if vulnerable persons are not to be put at risk.

5.      In order to protect the mentally incapacitated from abuse and restore moral and intellectual clarity to the law in this area we commend to the Joint Committee Baroness Knight of Collingtree’s Patients’ Protection Bill. This Bill would make it an offence for any person responsible for the care of a patient to withdraw or withhold sustenance if his purpose in doing so is to hasten or otherwise cause the death of the patient. We urge the Committee to read the House of Lords debates on this Bill carefully and insert into the draft Mental Incapacity Bill provisions from the Patients’ Protection Bill that relate to the mentally incapacitated.

ALL-PARTY PARLIAMENTARY PRO-LIFE GROUP

  SUBMISSION TO THE JOINT COMMITTEE ON THE DRAFT MENTAL INCAPACITY BILL

AUGUST 2003

Thank you for this opportunity to comment on the Draft Mental Incapacity Bill. We acknowledge the need to protect those who are mentally incapable and to clarify the legal position of those undertaking the care of mentally incapacitated adults who are not detained under the Mental Health Act 1983.

We also recognise the need for a common framework of law to regulate decision-making for the mentally incapacitated which embraces their health and welfare interests as well as their financial interests.

We would welcome the opportunity to appear before the Committee to submit oral evidence.

• The All-Party Parliamentary Pro-life Group is committed to upholding the sanctity of human life from conception until natural death. Every human being, regardless of mental incapacity, possesses a fundamental worth and dignity for as long as he or she is alive. Human worth and dignity do not depend on acquiring and retaining some particular level of understanding or capacity for choice or for communication. Recognition of the fundamental worth and dignity of every human being is the indispensable foundation of justice in society.
• Mental Incapacity Legislation must not be the Trojan horse through which assisted suicide and euthanasia are introduced. We are deeply concerned that the Draft Mental Incapacity Bill would weaken the prohibition against assisted suicide and euthanasia.

Best interests – Section 4.

1. The explanatory notes identify this concept as constituting “the overriding principle that must guide all decisions made on behalf of someone lacking capacity.”

2. It is therefore imperative that this concept is accurately defined. Unfortunately the checklist of factors in the draft Bill is deficient.

3. The understanding of ‘best interests’ must include objective, substantive requirements. The views of others on a person's "wishes and feelings and the factors he would consider if he were able to do so” should be allowed to influence decision making for the person only if they are consistent with an objective, substantive conception of the `best interests' of the person.

4. In the area of healthcare, the concept of `best interests' should be understood to include the standard objectives of healthcare practice: the restoration and maintenance of health, or of whatever degree of well-functioning can be achieved, the preservation of life, and the control of symptoms when cure cannot be achieved.

5. If the understanding of `best interests' fails to include objective, substantive requirements there will be no non-arbitrary way of judging whether the testimony of relatives and others about a patient's "preferences" is self-serving.

6. Objective criteria of what is in a person’s best interests excludes the thought that it can ever be in a person's best interests to have his life ended through conduct (`action' or `omission') intended to end his life. This denies the inherent worth and dignity of seriously incapacitated human beings.

7. In the absence of objective and substantive criteria which refer to the patient’s best medical interests, the concept of ‘best interests’ collapses into whatever the person thinks or whatever other people think is in the person’s best interests. This does not serve to protect the mentally incapacitated.

The general authority – Section 6

8. No person acting under a general authority should be able to authorise the withholding or withdrawal of either life sustaining treatment or basic care.

9. The Law Commission draft Bill Mental Incapacity defined `basic care' as "care to maintain bodily cleanliness and to alleviate severe pain, as well as the provision of direct oral nutrition and hydration". [LawCom231: 5.34] We believe this definition is too narrow. Nutrition and hydration, however so delivered, should be considered a part of basic care. They are not a form of medical treatment. Hunger and thirst are not illnesses. The provision of appropriate sustenance is necessary to sustain life.

Lasting powers of attorney – Sections 8 to 13.

10. Legislation introducing LPAs extending to personal welfare and health care matters is welcome only if the LPA is exercised by reference to the ‘best interests’ of an incompetent person, with the concept of ‘best interests’ being understood by reference to objective and substantive requirements as set out above.
    
11. No attorney should have the power to consent to the withholding or withdrawal of basic care which includes appropriate nutrition and hydration, howsoever delivered.

Advance decisions to refuse treatment – Sections 23 to 25.

12. We do have serious concerns that the proposed legislation on advance decisions to refuse treatment would undermine protection for the mentally incapacitated.

13. Advance decisions will encompass matters of profound significance in terms of personal welfare and health care. There is a need for clarity and accuracy. Advance decisions “expressed in broad terms or non-scientific language” (Section 23(2)) are likely to fail to satisfy these criteria. They could be dangerous and compromise patient care.

14. Oral advance decisions or advance decisions dealing with hypothetical future scenarios may lead to disputes which the courts would be called upon to resolve. An increase in litigation consuming scarce health care resources would be an unfortunate by-product of legislation.

15. There is no requirement in the draft Bill for the maker of an advance decision to seek medical advice prior to finalising his advance decision. An ill-informed advance decision can hardly be considered a genuine exercise of autonomy.

16. Assisting in suicide is an offence in the United Kingdom. It is important that the law should continue to discourage assistance in suicide, even when the assistance takes the form of omitting care and treatment, in accordance with the terms of an advance refusal of treatment.

17. Doctors and other carers should not be obliged to comply with advance decisions to refuse treatment that are suicidally motivated. To oblige doctors and other to do otherwise fatally undermines the legal prohibition against assisted suicide and is contrary to the patient’s ‘best interests’, properly understood.

18. To legitimise advance decisions to refuse treatment or care with a view to ending life is morally indistinguishable from euthanasia. Proponents of euthanasia will argue that active, or positive, euthanasia is more merciful than what can be a protracted and painful death where life-sustaining treatment or care is withdrawn.

19. Advance decisions to refuse treatment must be framed by reference to the ‘best interests’ of an incompetent person, with the concept of ‘best interests’ being understood by reference to objective and substantive requirements as set out above.

20. A person’s refusal of life-prolonging treatment need not be motivated by the desire to end his life. It can be reasonable to refuse such treatment on the grounds that burdens associated with the treatment outweigh the benefits. In assessing the likely burdens of a course of treatment for a mentally incapacitated person consultation can take place with relative and friends. Advance decisions which, although not binding, fulfil criteria of clarity and accuracy can play a useful role in informing doctors of a person’s wishes.

21. Where it is known that an advance refusal of treatment is clearly motivated by the view of the person who made it that in such-and-such conditions his life would be no longer worthwhile and for that reason he would want doctors to end treatment and care precisely to end his life, then it should not be permissible for doctors to comply with that refusal.

22. Rather, doctors and other carers should be obliged to act with a view to serving the best interests (including sustaining the life) of the mentally incapable person, just as if no such refusal had been made.

23. It should not be possible for advance decisions to refuse treatment to exclude the provision of basic care, including the provision of nutrition and hydration, howsoever delivered. Nutrition and hydration can be delivered to persons in a variety of different ways, at different times and for different periods of time. We cannot envisage how an advance decision to refuse such basic care can be expressed with sufficient clarity and accuracy so as to exclude the possibility of a mentally incapacitated person being deprived of the basic necessities of life in circumstances where the provision of such basic care is appropriate and not unduly burdensome.

Conclusion

24. The All-Party Parliamentary Pro-life Group acknowledges the need to reform the law as it relates to those who are mentally incapacitated.

25. The understanding of the pivotal concept of ‘best interests’ must include objective, substantive requirements if vulnerable persons are not to be put at risk.

26. The draft Mental Incapacity Bill would authorise those responsible for care of the mentally incapacitated to withdraw or withhold medical treatment or nutrition and hydration, however so delivered, with the purpose of hastening or otherwise causing the death. Following the House of Lords judgement in the Anthony Bland case such conduct may well be deemed as compatible with the exercise of the duty of care for a person if doctors judge that person’s life no longer worthwhile.

27. In the words of Lord Mustill, the law in this area “is already both morally and intellectually misshapen.” To allow doctors or attorneys to withdraw medical treatment or sustenance from the mentally incapacitated with the purpose of ending their lives subverts the law of murder.

28. This does not mean that medical treatment cannot be withheld or withdrawn when it is considered that the burdens of such treatment outweigh the benefits, or that sustenance cannot be withheld or withdrawn from a person who is in the process of dying and where the placement of feeding tubes would be regarded as unduly intrusive and inappropriate or where the risk of placing the feeding tube would be excessive.

29. In order to protect the mentally incapacitated from abuse and restore moral and intellectual clarity to the law in this area we commend to the Joint Committee Baroness Knight of Collingtree’s Patients’ Protection Bill. This Bill would make it an offence for any person responsible for the care of a patient to withdraw or withhold sustenance if his purpose in doing so is to hasten or otherwise cause the death of the patient. We urge the Committee to read the House of Lords debates on this Bill carefully and insert into the draft Mental Incapacity Bill provisions from the Patients’ Protection Bill that relate to the mentally incapacitated.