Joint Committee on the Draft Mental Incapacity Bill Written Evidence

70.Memorandum from the Labour Life Group (MIB 601)

We in the Labour Life Group have a number of concerns about the Draft Mental Incapacity Bill in its present form:

  1.  A clause should be added to the Bill outlawing the withdrawal of nutrition or hydration with the intention of causing death. The provision of nutrition and hydration cannot be classified as medical treatment, even if it is by a tube.

  If I discovered you tied up and I neither untied you so that you could get your own food and drink nor gave you food and drink, I would be responsible for your resulting death as surely as the person who tied you up in the first place.

  I am not suggesting that nutrition and hydration should not be withdrawn if it is causing distress to the patient, because then it would be being done to relieve the patient's suffering. If the patient's condition was such that the patient's body was unable to gain sustenance from the nutrition and hydration provided, then it would be appropriate to withdraw nutrition and hydration in this case also.

  But, apart from these two tightly defined areas, nutrition and hydration should never be withdrawn. I know that for me to differentiate between the provision of nutrition and hydration via a tube and some other forms of care, which I would define as medical treatment, may seem to some people to be a very fine distinction, but I feel that it defends a principle and that principle protects vulnerable people. As a disabled person, myself, I think that makes it a very important distinction.

  2.  There needs to be a clearer definition of a patient's best interests. The Draft Bill defines these vaguely as the patient's wishes or what someone else imagines their wishes to be. The Draft Bill is so vague it could mean a chance remark the patient once made while watching television.

  The Bill should be amended so that a patient's best interests involve objective medical criteria including the restoration and maintenance of health. Where no cure is possible, best interests must include control of the symptoms, including pain.

  3.  Where patients are not competent, proxies legally entitled to act for the patient should be allowed to make decisions on the acceptance or refusal of treatment, as envisaged in the Draft Bill. However, there must be safeguards to ensure that proxies are acting with due respect for the patient's reasonable will and legitimate interests and are not motivated by self-interest.

  4.  There needs to be a system of appeal to protect the rights of doctors, those with powers of attorney, or family and friends.

  5.  While the House of Lords Select Committee welcomed advance directives as being very helpful to doctors and carers, it warned of the dangers of making them legally binding. One reason they gave was that patients could deprive themselves of treatment developed after they signed the advance directive. Advance directives should not be made legally binding in statute law. The Government claims that advance directives are already legally binding in case law. However, I would challenge this opinion on the grounds that there has been no definitive case.

  6.  An ORB survey on euthanasia and assisted suicide found that doctors are extremely concerned about the possible effects of advance directives. Only 40 per cent said that they would follow an advance directive if the patient was unable to confirm it, while 49 per cent said they would seek the advice of a colleague. Six per cent said they would refuse to follow the directive, while 3 per cent said they would withdraw from the case. Actually, 71 per cent said there were circumstances in which they would ignore advance directives. The reasons they gave were the same sort of concerns expressed by the Select Committee.

  I hope our concerns will be addressed in the next draft of the Bill.

August 2003

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