The proposed Mental Capacity Bill will establish dangerous principles
about the ending of life, says Adrian Treloar‘
THE DANGER of passive euthanasia has moved a step closer after the
Government’s enthusiastic endorsement in the Queen’s Speech of its nearly
complete Mental Capacity Bill. It is not clear whether the promises made by the
Lord Chancellor, Lord Falconer, on Tuesday, of amendments when the Bill returns
to the House of Lords, will be enough to address these concerns.
It has been criticised by Christian lawyers, doctors, and pro-life
campaigners, who have warned that, in its present form, it allows
killing-by-omission of the mentally incapacitated. As it stands, the Bill
requires doctors to abide by a patient’s advance decision to refuse treatment.
Currently, doctors can reject these advance decisions, or "living wills", if
they feel they would not be in the patient’s "best interests".
The legalisation of a passive form of euthanasia is not, of course, the
stated aim of the Bill. In theory, it seeks to clarify how all decisions are to
be made when someone lacks "mental capacity". This covers health-care and
personal-welfare decisions; what is meant by "capacity"; and the establishment
of criteria for assessing what is in the "best interests" of someone who lacks
"capacity". It also seeks to introduce the concept of a "general authority to
act", which clarifies in statute the circumstances in which decisions can be
taken on behalf of others, without the need for any formal authority. It also
gives "lasting powers of attorney" to family or friends.
In theory, all this sounds helpful; but I believe some sections of the
proposed Bill are a step towards legalising euthanasia. For example, the Bill
states that serious medical treatment may be withdrawn in the "best interests"
of the patient. It is very clear that this means the Bill will allow the
removal of food and fluids from patients in a persistent vegetative state
(PVS), as well as from stroke patients and newborn disabled babies.
The Government states that these matters will be subject to a code of
practice, and that recourse to the courts will continue for the time being in
cases where this currently happens. Codes change with time, however, and the
Bill will therefore give statutory support to ending the lives of stroke
patients by dehydration, as well as allowing, without further legislation, the
ending of life for PVS patients.
Those in control of lasting powers of attorney for incapacitated patients
will be able to require such ending of life by refusing serious medical
treatment (including food and fluid by tube). Where the Court of Protection
appoints a consultee, a government appointee will acquire the ability to stop
treatments in this way. Therefore the Bill will go a long way to enabling
euthanasia by neglect by a wide group of individuals.
"Best interests" remain poorly defined. They are described solely in terms
of the patient’s actual or hypothetical desires. The Bill nowhere refers to
life and health in listing them.
Another worry is that "serious medical treatment" is not defined. It will
certainly include food and fluid administered by tube, but may also include
other oral nutrition. Therefore the range of treatments that can be withheld or
withdrawn is likely to be wide.
The range of disabilities and illnesses will also be wide. This risks
decisions’ being made on the basis of "worth", "personhood" or "utility" of
individual patients. Disabled and elderly patients are at great risk in all
such quality arguments.
It is, of course, absolutely right that doctors must limit medical care
where it will not work. But if doctors are legally required to end life by
withholding treatment and food, this will fracture the vision of each of our
patients as uniquely deserving of respect, love and care. That is precisely
what happened in Nazi Germany. The first victims were the disabled and elderly.
THE BILL is not all bad news, however. The validity of decisions made in
advance by patients on their future medical treatment, in the event of their
losing mental capacity, will be limited under the Bill. They will have to be
specific, and relate to conditions that were foreseen; and the patient must not
have done anything inconsistent with the decision since it was made.
Furthermore, if there are reasonable grounds to doubt that the patient did not
foresee circumstances that would have made him or her think differently, the
decision can be questioned.
Yet, apart from these limitations, advance decisions or "living wills" will
be given statutory power. As currently drafted, the Bill compels doctors to
abide by advance directives, even if refusing treatment would cause pain and
One good aspect of the debate on advance decisions is that doctors have
gained a much clearer description of the limits to their authority. Faced with
an advance decision, the Bill will give doctors considerable power to continue
to cherish the life of the patient and provide care.
There is a range of opportunities to question the validity of directives
when they appear to harm the patient. This is a huge improvement on previous
loose definitions. It is still not clear, however, whether a suicide note would
constitute a valid decision that would require doctors to allow those who harm
themselves to die.
Lasting powers of attorney are partly good, but also dangerous. They give
another individual statutory authority to consent to treatment for those
without capacity who refuse, or cannot consent to, care, including those who
resist. This should improve care, as currently incapacitated patients who
resist care may not be treated.
Enduring powers of attorney already work well for money matters, and may
help medical care. But there are cases of fraud in money matters, and the
possibility that an appointed attorney will not act for the patient’s best
medical interests must concern us. It is not clear how those who oppose good
care for patients will be dealt with.
THE Abortion Act 1967 resulted in the blocking of a high proportion of
Christian doctors from obstetrics and gynaecology, as those with a
conscientious objection found it harder to develop their careers. A few held
on, believing that doing some abortions enabled them to influence and save
others. The same sort of thing could well happen in the care of the sick and
vulnerable, if this Bill is passed. Specialities such as geriatric medicine,
palliative care, old-age psychiatry and general practice might become no-go
We should be very concerned about the Bill. It is a long way from being
benign, and will probably turn out to have been the point at which euthanasia
became legally established in this country.
Dr Adrian Treloar is a Consultant and Senior Lecturer in Old Age
Psychiatry at Guy’s and St Thomas’, London.