48.Memorandum from Julia Goffin (MIB 21)
I wish to make the following submission on the
Draft Mental Incapacity Bill. My primary concern is that the Bill
contains no amendment to outlaw the withdrawal of life-sustaining
treatment and care with the purpose of causing death. There is
no requirement of course to provide food and fluid in the rare
cases where it causes distress to the patient.
1. On the subject of legally binding Advance
Directives I can see several problems. When an individual signs
an Advance Directive, he can have no idea what treatments may
be possible or necessary. He can have no inkling of future cures.
The circumstances prevailing at the time of implementation may
be complex and unforeseeable.
2. Legally binding Advance Directives could
lead to non-treatment of a curable illness. The patient could,
due to legal restraints on treatment, end up in the very state
they feared when signing the Advance Directive ie disabled (but
3. No one is required to check whether an
individual was fully informed of the consequences of signing.
4. If a patient should become disabled because
of failure to treat due to a binding Advance Directive, there
will be no redress as the doctor is not exercising his own judgement.
5. The power to decide when the time has
come for an Advance Directive to come into effect belongs with
the doctor, as does the power to decide the type and extent of
medical intervention that is to be withheld. This power is not
restricted to "extraordinary care" but to any medical
6. A recent survey found that 71 per cent
of doctors said there were circumstances in which they would wish
to disregard Advance Directives.
1. The traditional interpretation of "best
interests" has been "best clinical interests".
The Draft Bill includes in "best interests" much wider
and looser considerations such as "spiritual and religious
welfare" and "financial interests" or what someone
imagines the patient's interests might be. These are poorly defined,
vague and subjective opinions.
2. According this re-writing of "best
interests", an argument could be put forward that a patient's
quality of life is believed to be so low that they do not warrant
the protection of the law against homicide.
1. It is to be welcomed that the Draft Bill
contains a clause that will not allow non-voluntary euthanasia
by withdrawal of treatment regardless of the wishes of the patients
or their families. However the extension of the current remit
of the Enduring Power of Attorney into healthcare decisions could
prove to be very dangerous. Appointed proxies would possess legally
binding powers to force doctors to kill by withdrawing life-sustaining
treatment and care. Such attorneys may be unqualified and would
2. The Draft Bill includes no clause establishing
a system of appeal to protect the rights of doctors who may feel
pressured by self-interested proxies to withdraw food and fluids
from mentally incapacitated patients.
Whilst I would agree that many parts of the
Draft Mental Incapacity Bill could prove very valuable, it also
includes provision for euthanasia by neglect.
I cannot understand why so little time has been
allowed for evidence and submissions to be sent to the Standing
Committee on these most controversial and wide-ranging proposals.