97.Memorandum from Catherine Crabtree
I write as a solicitor in the City of London
deeply concerned by the proposals set forth in the draft Mental
Incapacity Bill ("MIB"). In response to the Committee's
request for submissions from members of the public I set out below
the key points of my concerns.
1. THE PROPOSALS
1.1 I understand that the MIB proposes to:
(a) give binding status to a so-called "advance
decision" to have one's medical treatment withheld in circumstances
of mental incapacity, regardless of the method in which such decision
was communicated, the age of the decision, or how hypothetical
the condition; and
(b) establish "Lasting Powers of Attorney"
which allow a person to appoint another to act on their behalf
on matters which include healthcare in the event that they lose
mental capacity in the future.
1.2 Under either (a) or (b) medical treatment
could be refused to a mentally incapacitated person. Following
the case of Airedale NHS Trust v Bland
"medical treatment" is considered to include food and
fluids delivered by tube.
2. A DENIAL OF
2.1 Generally speaking, the law would consider
the withdrawal of food and fluid to be a method of killing. A
person who denied food and drink to a child in his care to the
point of death, for example, would be considered to have murdered
2.2 It is a legal principle that one cannot
consent to one's own killing. However, this permitting of a withdrawal
of food and fluids allows that, given some degrees of handicap,
one can consent to one's own killing. The necessary implication
of this is that there are some classes of people who the law considers
deserve fewer protections than others. The law will provide cast-iron
defences for the strong and healthy, but will dilute these protections
for those suffering from mental handicap.
2.3 This reveals the fundamental thinking
behind the MIB (and behind the apparent current thinking of the
Family Division of the High Court)that some lives are more
worthy of protection than others. This is a worrying principle
to introduce into the legal system. Assessing lives according
to their "value" could lead to obvious and horrific
consequences. Why do we recoil at the idea of peacefully killing
in its sleep a child born into a poverty stricken and war torn
country who is bound to face terrible suffering? Why are we horrified
by the case of Harold Shipman who killed elderly patients without
(it seems) causing them any fear or distress? It is because we
recognise that life itself has a value which is not contingent
upon the circumstances in which it is lived. This is an instinctive
and fundamental ethical principle which has historically been
upheld by our legal system. It would be attacked to the core if
the MIB were to become law.
The MIB creates punishments for "concealing
or destroying" an advance refusal of medical treatment. This
is tantamount to a denial of freedom of conscience. Most major
world religions consider the value of life to be absolute rather
than relative and members of these religions would clearly object
to playing a part in the premature death of any human being. Such
a provision would prevent these people and other objectors on
ethical grounds from legally following their peacefully held beliefs.
In addition to my fundamental concerns about
the eroding of the value of life, there are several practical
concerns which should, I suggest, in themselves be sufficient
to prevent the MIB from becoming law:
(a) It is impossible to draft around the
possibility that a patient may change his/her mind about an advance
decision. There will always be the risk that a doctor will be
acting against a patient's wishes when (s)he acts to bring about
the ending of their life.
(b) An advance decision may be made in any
form and need not be registered. It can therefore be made orally
to any person. The potential for abuse here by a malicious relative
or acquaintance is evident.
In the strongest possible terms, I therefore
urge the Committee to recommend that the MIB does not become law.
39  AC 789. Back