Joint Committee on the Draft Mental Incapacity Bill Written Evidence

88.Memorandum from Malcolm Underwood (MIB 107)


  The 1948 Universal Declaration of Human Rights states that "everyone has a right to recognition everywhere as a person before the law" (article 6) and that "everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind" (Article 2). The idea that someone might, on account of a disability "have no best interests" is in opposition to both the phrasing and the spirit of that declaration. Yet this was an opinion voiced during the case of Tony Bland (1994), who eventually died of dehydration. The judgement in that case, by redefining the provision of food and fluids to a patient as "medical treatment", and making their withdrawal permissible, also cancelled a basic level of responsibility to human beings in his condition which had hitherto universally obtained.


  It is a valid principle that persons can bind themselves by their own decisions as regards the conduct of their lives. Decisions necessarily are of a different order when they concern the renunciation of life itself. The official adoption of Advance Decisions, whereby a subject's oral statement alone, evidenced later by one witness, could lead to the withdrawal of food and fluids from that subject after he or she had become unable to voice dissent, is a travesty of justice. Not only that, but a person rendered unable to dissent by illness contracted after they had made the Advance Decision is completely open to exploitation by others, at a time when what is needed is greater protection by society.


  The consequences of a more open attitude can be made clear. The case of Marian Sallery shows how wrong some initial judgements can be. She was wrongly diagnosed as being in Persistent Vegetable State in 1983, continued to be sustained by nutrients at the wish of her parents, and was later found to have been in a state of non-communication but of perfect awareness, and lived in a Cheshire Home until 1994. This person had the benefit of better care, because the initial suggestion that the basics of life should be withdrawn was refused on her behalf. My own mother suffered two strokes while in an institution providing day and night care, and as a family we were able to continue visiting her, celebrating birthdays, and being present up to her death.


  My last point concerns the way is which the proposed legislation may be stretched. The "Making Decisions Alliance", a group of 30 voluntary sector organisations has welcomed the MIB, claiming that "although advance decisions are sometimes concerned with the refusal of life-sustaining procedures in the event of terminal illness, they have nothing to do with euthanasia or suicide". The provisions of the Bill, however, do not stipulate that the decisions would only apply in such cases. Rather, they could become operative simply as a result of mental incapacity. With supply or withdrawal of nutrients now defined in the UK as an aspect of medical treatment, it is clear that the effect of some Advance Decisions might be to end life by means of such withdrawal. The Americans are apparently more alive to this danger. In the majority of States which have approved Living Wills, the relevant legislation specifically excludes termination of life by those means. In fact, although this Bill claims to give greater individual responsibility and freedom, it is in fact paving the way for a culture of euthanasia: withdrawal of hydration and nutrition have to the best of my knowledge been espoused by the pro-euthanasia Hemlock Society.

August 2003

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