70.Memorandum from the Labour Life Group
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should not be withdrawn if it is causing distress to the patient,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nutrition and hydration should never be withdrawn.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
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.