Catholic Bishops' Conference of England and Wales

Briefing Note on the
Mental Capacity Bill
By
Archbishop Peter Smith
(Chairman, Department for Christian Responsibility and Citizenship)
and
Professor John Finnis
(Professor of Law, Oxford University)

July 2004

Introduction

1. The purpose of this Briefing Note is to set out some key concerns about the Mental Capacity Bill published on 18th June 2004. It first of all explains the representations made by Archbishop Smith on behalf of the Catholic Bishops' Conference of England and Wales (CBCEW) to the earlier Draft Bill in conjunction with the Linacre Centre for Healthcare Ethics, and gives a summary general comment on the effect of the Government's amendments.

2. The second section of the Briefing Note (entitled 'Detailed Observations') begins by considering the argument that there is a moral duty to oppose the Bill on principle, and proposes an amendment that would rectify many of the Bill's weaknesses and put the matter of principle more securely beyond doubt. There then follow sections covering the main specific areas of outstanding concern:

3. Archbishop Smith on behalf of CBCEW has worked closely with Professor John Finnis in the preparation of recent submissions to the minister Lord Filkin and this note. He has also kept in close touch with the pro-life MPs working together to seek to ensure that the Bill does not become a vehicle for the introduction of euthanasia. He welcomes all that the Government has done to improve the health provisions of the Bill, and the various ways in which the Bill would improve the position of incapacitated persons more generally. Many of these improvements concern matters to do with management of finances and property, but this Briefing Note does not concern these important aspects of the Bill.

I: Background and summary of the current situation

4. The Bishops' Conference first commented last September on the earlier draft Bill. That submission identified four major areas of concern. First, the lack of effective safeguards against suicide and homicide by omission, and the Bill's failure to distinguish between decisions by doctors, patients or proxies made with the aim of causing death and decisions made with the aim of avoiding the burden of certain interventions. Second, the Bill's failure to include any reference to the patient's life and health in its checklist of factors relevant to a patient's "best interests". Third, various dangers in the proposed scheme for giving legal status to decisions, in the context of health care, by proxies who might have motives for giving little or no weight to the patient's interest in life and health. Fourth, various dangers in enforcing advance decisions to refuse "treatment" (which in practice would include tube-feeding).

5. In January this year, the Minister responsible for the Bill gave us the opportunity to make concrete proposals for ways and means of meeting our concerns. We gave him a position paper with specific comments and draft clauses dealing with (1) safeguards against euthanasia and suicide;(2) advance decisions to refuse treatment - which we urged should have only advisory status and should, in any event, be ineffective whenever circumstances had arisen which were probably not anticipated by the patient and would probably have affected his or her decision; (3) inclusion of reference to the patient's life and health in the checklist for determining "best interests"; and (4) protecting the patient against all research not in his or her own best interests -- subjection of patients to research being a matter urged on the Government by the parliamentary Joint Select Committee in November 2003.

6. The Minister, Lord Filkin, met with us twice, and there was correspondence with him and his advisers. These discussions were welcome and constructive. The Bill in its new form adopts a version of two of our proposals, and goes some way towards another. The main proposal adopted (though in different language) is important: it is clause 58, declaring that "nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 [which prohibits assisting suicide]." The other proposal adopted is also welcome: professionals and other carers wishing to treat a patient said to have made an advance refusal of treatment will be able to treat unless satisfied that such a decision was made and remains valid and applicable.

7. Those changes are important and entirely welcome. We had argued that the inclusion of a clause such as Clause 58 was the minimum required to provide the necessary assurance that nothing in the Bill permits euthanasia. With such a clause now in the Mental Capacity Bill, together with other important changes made to meet our concerns, we do not believe that the Bill can be described correctly as a Bill introducing a permission for euthanasia, which would have to be opposed for this reason.

Remaining weaknesses
8. That is not to say, however, that the Bill is now adequate as it stands. In fact there are a number of important weaknesses in the Bill which we believe still must be addressed. Indeed, our position paper pointed out that adding a declaratory clause preserving the law against euthanasia and suicide, though the essential minimum, would not by itself be a sufficient safeguard against euthanasia and suicide by omission, because it would not remedy an existing serious deficiency in the law about hastening death by omission which has been in disarray since the decision of the highest court in the Bland case in 1993.

9. Consequently, we pressed for an alternative and more adequate safeguard: "Nothing in this Act permits a person responsible for the care of another person ("P") to withdraw or withhold treatment or sustenance from P if in doing so he has a purpose of hastening or otherwise causing P's death." The Government has not included any version of that safeguard, and has given no adequate reason for rejecting it. It says that the safeguard could result in doctors erring on the safe side and inappropriately continuing treatment even if someone was in the process of dying. But professional ethics and practice already incorporate the well-known distinction between adopting a course of conduct in order to hasten death and adopting a course of conduct (perhaps even the same one) without any such purpose or intention although foreseeing that death will probably or even certainly be hastened. Elsewhere in discussions about the Bill (especially in relation to "best interests"), the Government insists that the medical profession and its professional ethics can be trusted not to "err".

10. The Government's other stated reason for not accepting our amendment is that the Bill is not meant to alter the existing law on these controversial matters. But one thing is clear. By conferring on proxies, and on advance decisions of patients, the statutory power to refuse treatment - and in that sense making treatment statutorily unlawful in various circumstances -- and by granting these proxies the right to make determinations about the patient's "best interests" by a new and highly subjective statutory approach, the Bill will have a profound and far-reaching effect on the context in which, and (we fear) the way in which, the existing law on homicide and suicide by omission will operate in practice. The weight of the Act will favour both (a) omitting treatment in a range of cases where hitherto it would have been omitted only if the patient refused consent, and (b) in many cases ceasing to provide food and water, in circumstances where but for the Act such treatment and sustenance might well have been given. That being so, it seems quite unacceptable that existing legal ambiguities about omissions should be allowed to continue, let alone be extended in these ways.

11. In short, the Bill as published does not enshrine the Bland judgement in statute, but nor does it remedy the dangerous aspects of the opinions of several judges in that case. The Bill's authorisations of advance and proxy refusal seem likely to result, in practice, in a widened range of decisions to refuse consent to treatment, including provision of sustenance by any "procedure", to wider categories of patients. Certainly, the Law Lords' Bland judgments create a difficulty for the Bill to operate safely without further bolstering the crucial safeguards it now contains, and we hope the needed further safeguards will be incorporated into the Bill during its passage through Parliament.

Two important amendments needed
12. To meet the Government's objections to the amendment we proposed, we now propose a reformulated amendment, set out in para. 20 of the second section of this Briefing Note. As reformulated, this leaves untouched the legal rules relating to the conduct of doctors and other healthcare professionals. Those rules are now preserved by cl. 58. In line with the general motivation of cl. 58, our amendment will make it clear that, just as doctors should not do anything to patients in order to bring about their death, so too those whom the Bill authorises to make decisions which can then bind doctors must not make those decisions in order to bring about the patient's death. Decisions made with that improper purpose will not be made criminal or tortious by the amendment, but will simply be deprived of their statutory effect, leaving doctors free to give or withhold treatment according to their professional judgment of the patient's best interests. We believe the Government should welcome this amendment, which is entirely in line with its oft stated intention not to change the law, and not to introduce euthanasia or assisted suicide.

13. The second amendment which we have proposed already, and now set out in para. 25 below, is equally important. It would ensure that the patient's interest in life and health is taken into account in determining their "best interests". Taken together, these amendments would lay to rest many reasonable fears about the Bill's impact.

Detailed analysis of remaining issues
14. In the second section of this Briefing Note, which we have prepared for the consideration, in particular, of parliamentarians, we detail a number of questions which we think should be asked by anyone deliberating about whether the Bill in its present form is worthy of support, by reason of the welcome clarifications and safeguards it introduces to secure for the position of vulnerable people, or whether and how far it still requires amendments without which it might reasonably be opposed as unfairly dangerous to the many vulnerable people (potentially everyone) whose life and health will be affected in years to come by its practical operation.

15. The questions and concerns we raise in the Briefing Note have already been raised with the Government in recent months or since the republication of the Bill in June 2004. We readily acknowledge and welcome the significant changes which have been made to the Bill so far. We also record our appreciation of the Department's willingness to attend to our arguments and proposals. But we believe the changes made do not yet go far enough. The assurances and explanations given by the Government leave these questions and concerns alive and urgent.

II: Detailed observations

The basic test
16. The first question is whether the Bill, if enacted, would be "an intrinsically unjust law, such as a law permitting...euthanasia" or assisting in suicide.1 It is never admissible to promote or vote for the enactment of such a bill: Encyclical Evangelium Vitae (1995), 73.2.

17. Clause 58 of the Bill is relevant to this question: it declares that "nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 [which prohibits assisting suicide]." If the Bill will thus not introduce any principle affirming or entailing the permissibility of euthanasia or suicide, nor its enactment make permissible any kind of killing or hastening death not already permitted, these are two important respects in which it may reasonably be judged not to be "a law permitting euthanasia" and not to be "intrinsically unjust". We believe that with clause 58 the Bill cannot now be described correctly as a Bill introducing a permission for euthanasia, which must be opposed for this reason.

18. There remains the problem, however, that the existing non-statutory law since the House of Lords judicial decision in Bland in 1993 may treat as legally permissible certain omissions of treatment and non-provision of sustenance even when these omissions and/or non-provision are known to be for the purpose of bringing about death. May it not rightly be said that a Bill which specifically authorises certain decisions - those of proxies, and patients' own "advance decisions" - to require that life-sustaining treatment (including sustenance) offered by doctors be omitted and withheld, will be permitting euthanasia and suicide, and failing in the state's duty to defend human life, unless it takes steps to withhold this new statutory force from decisions whose intention and purpose is euthanasiast or suicidal?

19. Cl. 58 by itself will not solve the problem. A doctor who withholds treatment simply because it has been forbidden by a statutory proxy's decision, or by a statutorily valid and applicable advance decision, will not be acting unlawfully under the rules preserved by cl. 58. Such a doctor's intent will simply be to comply with his or her legal duty, and the conduct - a set of omissions - will not amount to the matter (the "actus reus") of an offence or to a civil wrong. Commonsense would say that the doctor's conduct is assisting the euthanasiast or suicidal project. Indeed, the doctor's own conscience may well say the same. But in law and professional ethics the doctor's conduct, being intended only to comply with legal requirements shaped by this Bill, will be unchallengeable.

20. So there remains ground for doubting whether the Bill passes the test articulated in Evangelium Vitae 73.2 unless it makes clear that it confers no statutory authority on decisions made with intent to hasten death. What is needed is a clause withholding the statute's authority, or validity or applicability, from any decision under cll. 11(6), 16, 17, or 24 which is made with a purpose2 of bringing about the death of the person about whose personal welfare the decision is made. Such a clause, even though it would create no offence or civil wrong, would make it straightforwardly true that the Bill does not permit euthanasia.3

21. Even if the test is passed, there remain further questions about the Bill's practical operation and effect. The point of laws against intentional killing and assisting in suicide, and of the legally recognised "public policy" against suicide,4 is to protect vulnerable people whose lives would be endangered if the state ever came to treat itself as neutral between life and death, or as indifferent to the value and equal dignity of every person even in gravest impairment, or as concerned one-sidedly with an "autonomy" which for many such people might be little more than an occasion and arena for exploitative pressure to depart from this world for the convenience or benefit of others. Even a law that did not authorise euthanasia or assistance in suicide, as the Abortion Act 1967 unjustly authorises abortion, might still in effect permit euthanasia and assistance in suicide, and undermine the public policy against suicide, by failing to include safeguards against certain foreseeable ways of using the powers and arrangements made available by the new law.

"Best interests"
22. All acts done, or decisions made, under the Bill for or on behalf of a person who lacks capacity will be required to be done, or made, "in his best interests": cl. 1(5). But the Bill's explanation of "best interests", in cl. 4, makes no reference to the fact that persons, even when unconscious of or mistaken about their interests, have an objective interest in their own life, health and wellbeing.5 Instead, cl. 4(1) says that in determining what is in a person's best interests "the person making the determination must consider all the circumstances appearing to him to be relevant". Then cl. 4(2)-(6) say that "in particular" there must be a consideration of a range of factors, all of which relate to predicted capacity or incapacity, participation in decision-making, "past and present wishes and feelings," "beliefs and values that would be likely to influence" his or her decision if he or she had capacity, "the other factors that he would be likely to consider if he were able to do so", and the views of interested persons on "what would be in the person's best interests and, in particular, as to the matters" just mentioned. Those matters to be considered "in particular" all relate, as can be seen, to subjective interests -- desires, wishes, beliefs and values6 -- and not to the real dignity and value of the person's existence, life, health, and wellbeing as such.

23. In the absence of a clause such as is suggested in para. 20 above, what is to prevent or even discourage those making such determinations from "determining" that it is in a patient's best interests not to receive treatment, because it is in the patient's interest to die, because "that is what they would have wanted", even when a reasonable medical judgment would be that treatment would be neither futile nor unduly burdensome, but beneficial?7

24. The Government says that medical professionals will continue to use the traditional concept of best interests, which includes the patient's interest in life and health as central elements of his or her real welfare. But is it reasonable to suppose that professional attitudes will not be affected by the subjective character of this Bill's approach to "best interests"? (The ethics of the medical profession, as has been rigorously documented and demonstrated, were rapidly and profoundly affected, for the worse, by the Abortion Act 1967.) Does the word "circumstances" in cl. 4(1) securely imply a reference to the person's intrinsic interest in health and life? Will the medical insurers whose advice affects professional thinking regard it as safe for medical professionals to think in terms of medical best interests when proxies appointed under cll. 9 or 168 have made "determinations" relying on non-medical, subjective criteria? Is it not highly significant that these proxy decision makers are not subject to the professional responsibilities and ethics which the Government presumes will continue to apply to medical professionals? Is it even clear that the new offence of "ill treatment or neglect" by a proxy (cl. 42) includes improper determination of a patient's best interests, or refusing treatment on the basis of such an improper determination? How many doctors will have the time, energy and motivation to ask a court to override a proxy whose determination of best interests appears to them defective or questionable?

25. The Government says that "it is not possible to introduce the concept of 'medical' best interests into clause 4 because the Bill does not only apply to medical situations."9 Can this sensibly be thought to be an adequate reason? There should be a sub-clause along the lines that in respect of medical acts and decisions about the personal welfare of the patient, the determination of best interests must take into account the person's life and health so far as they could properly be the object of health care. In the absence of such a provision there is a severe risk that the objective interest of vulnerable patients may be submerged by the wishes - now given statutory force -- of persons who may have a conflict of interest with the patient, or by wishes, feelings, and concerns of the patient that may now acquire statutory force despite having been unduly narrowed or deflected by inclinations or external pressures towards self-destruction, or simply by lack of self-respect.10 How can it be right to leave such important elements of the Bill's central concept to be dealt with in a Code of Practice?

Advance refusals (decisions to refuse treatment)
26. The Bill will introduce into statute law a clear prohibition of treatment, including life-sustaining treatment, when it has been refused by an "advance decision" reasonably believed to be valid and applicable. The Government says that the whole Bill is about valuing the lives of vulnerable individuals and ensuring that they are given the respect they deserve. But there are serious grounds for fearing that the provisions about advance refusals, like the provisions conferring on proxies a power to veto treatment, may have a profound effect on medical ethics and practice, tending to devalue life by standing neutral, as it were, between life and death whenever "autonomy" (or the proxy's determination of subjectively conceived best interests) favours the latter against what is or would otherwise have been the clinical judgment of best interests. Without the amendments we propose in para. 20 and para. 25 above, the Bill would give a new and statutory significance, in at least some cases, to openly suicidal decisions intended to end life out of hatred of life, and to determinations by proxies made on the basis that the patient, if not incapable, would have considered suicide or euthanasia to be in his or her best interests.

27. It is not the Church's position that life must be sustained at all costs. On the contrary, one can quite reasonably, and consistently with one's responsibilities for oneself and others, decide to refuse treatment - even life-sustaining treatment - which one judges burdensome or futile, knowing that forgoing that treatment will shorten one's life. Such a decision is not suicidal, even in those cases where an outside observer, not being privy to the deliberation which (however rapidly and informally) preceded the decision, might be unable to distinguish it from a suicidal decision - that is, a decision to refuse treatment in order to shorten one's life, a life one intends to end (= has a purpose of ending) by this means. The two kinds of decision are radically distinct, really and morally, but may be identical in their direct outcome and their outward appearance. So it can sometimes be difficult or impossible to tell from the form of an advance refusal whether it is or is not suicidal. On the other hand, it is sometimes quite easy to discern, in all the circumstances, that an advance refusal is really suicidal. One example would be a refusal of resuscitation, stated as part of a suicide note written in calm and lucid terms by a young and healthy adult who for one reason or another is trying to kill themselves. 11

28. The Government has conceded that the Bill can give legal effect to just such a suicide note that specifies that "I do not wish to be resuscitated under any circumstances."12 Of course, this legal effect will only arise if the author of the suicide note wrote it with capacity, and the Government says this capacity "would be in doubt if suicidally motivated." We fear that there will quite often be little doubt that the suicide, though acting unwisely, was capable of deciding and therefore of making an advance decision to which the statute will give full effect. In such cases, a doctor could not honestly deny that he was "satisfied" (for the purposes of cl. 26(2)) that there was an advance refusal with full statutory force. A note not subsequently withdrawn is valid if made with capacity, a person has capacity if he is able to make a decision (cl. 2), and "a person is not to be treated as unable to make a decision merely because he makes an unwise decision" (cl. 1(4)). A "valid" note is "applicable" if the author is at present unconscious or in some other way lacks capacity to decide (cl. 25). It is reasonable to fear that the Government is being unduly complacent about the side-effects of confirming the legal effect of advance refusals without requiring them to be made with due formalities, as suggested by the Joint Committee.13 It should, however, be remembered that an advance decision may be made according to certain formalities while still being made with a suicidal purpose - in which case it should be not be given statutory authority, and healthcare professionals should be left to treat if they reasonably and in line with reputable medical opinion judge that it is in the patient's real best interests. Again, the Bill needlessly creates a problem that would be largely dissolved by a clause such as is proposed in para. 20 above. 14

"Treatment"
29. "Treatment" includes any "procedure" (cl. 60), and thus may extend not only to the provision of food and water by tube or line, but even perhaps - according to some judicial opinion -- to feeding of the incapable by, for example, spoon.15 So an advance refusal of "life-sustaining treatment", or the refusal by a sufficiently authorised proxy of consent to such "treatment", will in certain kinds of case - not necessarily infrequent -- be legally equivalent to a refusal of food and water.16 In some such circumstances, it will be clear to those concerned that the refusal has been made with the purpose of hastening death, and not because the provision of food and water would be burdensome or futile, nor because the patient is from other causes dying and close to death. Yet cl. 58's preservation of the law against murder and assisting suicide would not outlaw such refusals and withholding of sustenance, because giving effect to an advance or proxy refusal made effective by the Act will probably not be counted as assisting or causing or as intending or trying to do so.

30. Once again, this very grave practical implication or effect of the Bill might be substantially alleviated if not eliminated by a clause such as is proposed in para. 20 above. Where a healthcare professional with responsibility for the patient's care is satisfied, or has reasonable grounds for suspecting, that the refusal has been made with the purpose of bringing about death, he or she should remain free to give all such treatment, care, and sustenance as the best interests of the patient seem to him or her to call for. The clause we propose would also send a most desirable message to all concerned, that certain intentions (purposes, aims) have no place in healthcare, just as they have no place in any other part of life.

31. One further point about the present Bill's approach. In almost all jurisdictions which have legislated on these matters, "treatment" is distinguished from "palliative care", that is from pain relief, hygienic care, and sustenance (food and water however delivered). Making such a distinction was urged in the Bishops' Conference's Response to the earlier draft Bill. Has any good reason been suggested for this Bill's failure to do so?

Intrusive and/or risk-creating research
32. The Government has rejected the Bishops' Conference's urging that if, regrettably, it is to be lawful for a person who is incapable to be made a subject of intrusive or risk-creating research, that research must be [sufficiently] likely to benefit that person. Instead, the Bill for certain purposes allows intrusive research which is not for the benefit of the subject (P), provided that the risk to P is reasonably thought "likely to be negligible" (and that the research will not interfere significantly with P's freedom of action or privacy or be "unduly" invasive or restrictive).

33. This contradicts, in substance if not in words, the Bill's own principle (cl. 1(5)) that any act done "for or on behalf of a person who lacks capacity" must be done in his best interests. It also departs from the principle adopted in the European legislation on clinical trials,17 and in the recent UK legislation on clinical trials (SI 2004/1031), which provides that such trials can be made on a person who lacks capacity only if "there are grounds for expecting that administering the medicinal product to be tested in the trial will produce a benefit to the subject outweighing the risks or produce no risk at all." (SI 2004/1031, Sch. 1 Part 5 para. 9). (Para. 15 of these regulations adds, fittingly: "The interests of the patient always prevail over those of science and society.")

34. The Bill's provisions about research do go a long way to meeting reasonable fears about research on the incapable. The Government observes that the Bill's provisions on research follow those in Scotland and some other places. But the safeguards, we think, do not yet go far enough. The Government has not pointed to sufficient reasons why, anywhere, the individual person who is incapable should be subjected to intrusive research which might be risky and is not expected to be of any benefit to him or her. Is it not reasonable to fear, moreover, that attitudes to the incapable may evolve in ways which will affect the judgment of ethical committees about what degrees of risk to such persons are "likely to be negligible"?

July 2004

FOOTNOTES

1 As Lord Bingham pointed out in Regina (Pretty) v. Director of Public Prosecutions (2001), para. 20, there is no substantial moral distinction of principle between assisting someone to kill themselves ("assistance in suicide") and killing them with their consent ("voluntary euthanasia"). Back to text

2 The proposed clause uses "purpose" rather than "intent(ion)" because some legal sources extend "intent(ion)" to include foresight or foreseen effects. The word "purpose" is an ordinary word uncontaminated by legal fictions of this kind. Its ordinary meaning is well illustrated in a passage from a dissenting American judgment in 1996, a passage the substance of which was quoted, approved, and adopted by the Supreme Court of the United States in its leading judgment on assisting suicide, Vacco v Quill (1997): "When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death, despite his best efforts to minimise casualties. His purpose, though, was to liberate the beaches, liberate France, and liberate France from the Nazis. The majority [judgment]'s theory...would imply that this purpose was legally and ethically indistinguishable from a purpose of killing American soldiers. Knowledge of an undesired consequence does not imply that the actor intends that consequence." Kleinfeld J. in Compassion in Dying v Washington 79 F.3d 790 at 858 (1996). Back to text

3 Government lawyers suggested that such a clause - in an earlier version that we suggested to them -- would change the law about murder, manslaughter, and suicide. The suggestion was mistaken, not only because cl. 58 prevents any such effect, but also because those offences of homicide require an act or omission which causes death, but our proposed clause bears only on decisions (a proxy's refusal of consent to treatment, or a patient's own advance refusal of treatment). The law relating to the acts or omissions of those (typically, healthcare professionals) who give or withdraw or withhold treatment would remain undisturbed. To deal with such withdrawing or withholding itself, a Bill such as was introduced into Parliament in December 1999 as the Medical Treatment (Prevention of Euthanasia) Bill would remain desirable. For a statement of the Bill's provisions, and a demonstration of the mistaken grounds of the opposition to it by the Government and the BMA, see John Keown, Euthanasia, Ethics and Public Policy (Cambridge University Press, 2002), 260-272: the core provision was: "It shall be unlawful for any person responsible for the care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient." We are not proposing that such a reform, needful as it is, be attempted in the Mental Capacity Bill. Back to text

4 After the decriminalising of suicide itself by the Suicide Act 1961, "the policy of the law remained firmly adverse to suicide, as section 2(1) [of the 1961 Act] makes clear." The 1961 Act "conferred no right on anyone to [commit or attempt to commit suicide]". Lord Bingham in Pretty, para. 35. Back to text

5 The "objective" nature of the traditional legal and professional concept of best interests is often made clear by the courts' contrasting "objective best interests" with "substituted judgment" - the latter being a rival concept rejected by the English courts. See, e.g. the judgments of Lord Goff and Lord Mustill in Bland [1993] A.C. 789 at. 871-872, 894-895; In re Y [1997] Fam. 110 at 113-114. The effect if not the intention of cl. 4 of the Bill may be to move English law a very long way towards "substituted judgment". Back to text

6 See especially cl. 4(5)(b): "beliefs and values that would be likely to influence [the patient's] decision if he had capacity." - and this substituted judgment is to be made in a culture which increasingly regards some forms or qualities of life as "not worth living". Back to text

7 A refusal of treatment on such grounds would have a purpose of hastening death, within the meaning of the clause we propose in para. 20. A doctor who thought it was in the patient's best interests to treat, and who had reason to suspect that the proxy's refusal was made on such a ground, could lawfully treat; and could not lawfully withhold the treatment unless he was unaware, and not on notice, of the improper ground. Back to text

8 Not to mention consultees appointed under cl. 34. It is, in any case, unclear whether their "advice about the patient's best interests" is governed by cl. 4. That clause, specifying the Bill's approach to "best interests", relates only to "determinations", but Government lawyers say that consultees will not make any determinations. Back to text

9 "Government Response to Questions from Lord Alton and Jim Dobbin MP: 22 June 2004". Back to text

10 Officials say that this is already an always potential risk, even now, and that the Bill helps by setting out clear principles and the best interests checklist. But this overlooks (a) the fact that people with mixed motives or otherwise defective approaches to the patient, even if they are consulted, do not now have the statutory veto power they will have as proxies under the Bill, and (b) the lopsidedly subjective character of the best interests checklist. Back to text

11 Similarly, the circumstances may make it sufficiently reasonably clear that even the very same form of words is not expressing a suicidal intent. Suppose, for example, that one is aged 94, is suffering from progressive heart failure, has recently endured a succession of heart attacks and inevitably burdensome resuscitations, and has decided that a further resuscitation would be unduly burdensome. In making such a decision, one need not be supposing that all or most other people of the same age and physical condition would or should make the same decision. But equally, one's decision need not involve any suicidal intent, and the expression of it in the form of a statutory advance refusal, "I do not wish to be resuscitated under any circumstances", would doubtless, in the circumstances, be easily and rightly judged, by those to whom it was addressed, to be non-suicidal – that is, to involve no purpose of bringing about one's death. Back to text

12 "Government Response to Questions from Lord Alton and Jim Dobbin MP: 22 June 2004". Indeed, the Government concedes that "If the person had told his flatmate that he would not want to be resuscitated then again potentially this could be an advance decision to refuse treatment." Back to text

13 Joint Committee on the Draft Mental Incapacity Bill, November 2003, recommendation 58, calling for advance refusals to be recorded in writing and witnessed by two independent persons having no financial interest in the person's estate. The Government Response (February 2004), p. 28, says, unconvincingly, that "there is a risk that a formal process for making an advance decision would require a formal process for revoking the decision..." Back to text

14 As we have said, the problem is not solved by cl. 58, because there is no reason to assume that the decision of a doctor to comply with an openly suicidal advance refusal of resuscitation because he believes it is legally effective would be judged an instance of assisting suicide under the Suicide Act 1961. Officials say that it would be a significant change to the current law to deprive an advance decision made with capacity (and valid and applicable) of legal effect because of the maker's "motivation". The present law is much less clear than this argument assumes. The clause we propose would be in line with the dicta of Kay J in R v. Collins ex p. Brady [2000] 8 Lloyd's Rep. Med. 355 at 367. A significant change in the present law's ambiguities is required, especially if the framework of the law is to be shifted away from objective best interests towards autonomy and substituted judgment (which is the effect of the Bill in its present form). Back to text

15 In Bland [1993] A.C. 789 at 818, in the Court of Appeal, Lady Justice Butler-Sloss, latterly President of the Family Division of the High Court, immediately after remarking that "Interestingly, the Mental Health Act 1983 includes nursing in its definition of 'medical treatment'", suggested that by taking the real meaning of "treatment" to be "medical care", the courts, healthcare professionals, and laypeople could bypass "uncomfortable" attempts - which she suggested were futile and irrelevant - to distinguish "spoon feeding the helpless" from tube feeding, procedures which, these judges suggest, are each invasive, the latter only more than the former. This statement echoed Sir Stephen Brown, President of the Family Division, who (at 809) denied that the law was concerned with any fine distinctions between one kind of care and another. Both these judges' statements find some confirmation in the leading judgment in the House of Lords, holding that even if artificial feeding is "not strictly medical treatment, it must form part of the medical care of the patient". (Lord Goff at 870).
No member of the House of Lords cast doubt on Butler-Sloss LJ's assimilation of spoon-feeding and tube-feeding. Back to text

16 Officials assure us that such proxies "cannot overrule a doctor, and they would also have to be acting in P's best interests." But in fact it seems clear that such a proxy can overrule a doctor by making the refusal of consent sufficiently specific. How is the doctor going to be in a position, in many cases, to challenge the proxy's assertions about P's best interests, when the doctor knows nothing about P's "past and present wishes and feelings" or "the beliefs and values that [according to the proxy] would be likely to affect P's decision if he had capacity" (cl. 4((5))? Back to text

17 Directive 2001/20/1 of the European Parliament and Council. Back to text

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