Joint Committee on the Draft Mental Incapacity Bill Written Evidence

105.Memorandum from The Joint Medico-Legal Committee on Bioethics (MIB 885)


  1.  We are of the view that the groundswell of opinion which seeks a greater role for patient advocacy or consultation is understandable and meritorious. The present difficulties being experienced by the National Health Service has resulted in an increase in the number of cases of dissatisfaction with the care of the elderly, vulnerable and chronically ill and a concomitant concern over what some see as a decline in standards in some hospitals.

  2.  The principal failure of understanding in the discussion of patient advocates and consultees is the failure to appreciate that they are fundamentally different in kind from the concept of attorney. An attorney "stands in the shoes" of the donor of the power of attorney and acts as if he were the donor.

  3.  Whilst that is a workable concept in the conduct of financial affairs, in medical matters the principle of autonomy requires that the patient himself or herself makes the decision to accept or refuse treatment since it will be his or her body that will be affected thereby. Lasting Attorneys, who need not be medically qualified, will nevertheless be making a decision about somebody else's body and, importantly, can do so without having any duty of care and thus with almost complete impunity, even if they make a clinically negligent decision that harms the patient. That is a serious lacuna.

  4.  We support the idea of statutory consultees or patient advocates but not the potentially hazardous concept of Lasting Powers of Attorney (LPAs) or the related concept of legally binding Advance Decisions (ADs) in the sense set out in the draft Mental lncapacity Bill (MIB). Both an AD and an LPA may require a doctor to withhold treatment (even sustenance by tube) even if that forces the doctor to end the patient's life. A doctor could thus be prosecuted for failing to end a patient's life.


  5.  The legal background must be considered when interpreting the various clauses of the MIB. In particular, the decisions in a few leading cases have tended to blur the distinction between medical treatment and the provision of "basic care" eg hygiene, pain relief and, particularly, food and fluids whether oral or by tube.

  6.  All previous consultation papers and draft bills have made at least a requirement for the provision of "basic care". That is apparerntly absent from the present draft. Thus it is not necessarily clear if such basic care—as a bare minimum—is obligatory. Most people will agree that all patients should be kept clean and, so far as possible, pain free. But the MIB makes no apparently obligatory provision for such "basic care".

  7.  Furthermore, the current position in case law as regards the provision of tube feeding is far from unambiguous. It appears that such may be regarded in some cases as "medical treatment" and thus could be withdrawn if a group of doctors felt it was not in a patient's best interests. If food and fluids, however delivered, are withdrawn from a patient who is not dying, the patient will certainly die from such withdrawal, usually by dehydrating to death.

  8.  The current state of case law, where relevant, is reviewed below[42].


No Duty of Care owed by Lasting Attorneys

  9.  Provided an attorney acts within his given powers he cannot be sued, even if his decisions were clinically bad ones. Whereas doctors have a duty of care and can be sued for clinical negligence Lasting Attorneys cannot—they have no duty of care. The damage may cause financial loss to the donor. If the attorney is empowered to make medical decisions then the damage may be lasting or permanent physical damage or even death to the patient. It is important to realise that provided the attorney acts within his powers under the MIB he cannot be sued even if he makes clinically unsound decisions.

  10.  More importantly, the powers granted under an LPA can, if so framed, enable an attorney to require a doctor to withdraw or withhold treatment from the patient, because the attorney stands in the shoes of the patient—and the patient has an absolute right to refuse treatment when it is offered.

Intentional termination of life—a new prospect under MIB

  11.  Given that the law recognises (see above) that in some circumstances even food and fluids by tube can be withdrawn (because they can be considered treatment in some circumstances) then a Lasting Attorney will have the power to order a doctor to withdraw sustenance from a patient. If sustenance is withdrawn then a patient inevitablv dies. Thus it will be possible for Lasting Attorneys to have power effectively to order a doctor to bring about a patient's death.

  12.  Thus doctors could be required to terminate a patient's life intentionally. If the doctors does not follow the directive of the Lasting Attorney to withdraw the "treatment" (or even sustenance by tube) then that doctor may not only be liable in civil law but may be liable for the criminal offence of assault. If convicted he would be struck off the register.

  13.  Thus the MIB introduces a potentially odd situation whereby a doctor is criminally liable for assault if he does not bring about the termination of the patient's life deliberately and intentionally by withdrawing sustenance. This brings the law into immediate and serious disrepute by undermining the very law of homicide. To charge a doctor with assault for not terminating his patient's life is hardly reasonable, just or wise. Yet this could happen under the MIB.

  14.  One must also consider the effect upon the morale and ethical standards of the Health Service if doctors can be prosecuted for refusing to terminate a patient's life by withdrawing sustenance. The principle of "First Do No Harm" (Primuni Non Nocere) is compromised and the Hippocratic tradition of medicine undermined[43]. If the doctor is now oblieed to withdraw sustenance by tube from a patient on the direction of a Lasting Attorney then it can readily be seen that one of the most fundamental of medical ethical principles will have been breached permanently. Moreover, no doctor will be able to avoid the directive of the Lasting Attorney since the sanction for disobeying the LPA will be a very serious one ie criminal.

  15.  Members of the committee will be familiar with the case of Dr Harold Shipman. It can immediately be seen how much harder it would be to trace and apprehend doctors who take care to terminate their patient's lives when there is an LPA (or indeed AD). The activities of unscrupulous doctors will be given a plausible cover which might, in fact mask a deliberate intention to end life.

  16.  Further, one must consider the extent to which ending a patient's life by dehydration is a cruel method of terminating life. The body dries up, in effect. The eye sockets dry up, the skin becomes flakey and dry, the tongue dries up and turns black, and the brain sends distress signals all over the body: it is an unpleasant way to die and very unpleasant for relatives to observe. Relatives will ask why the patient cannot be eiven a lethal injection and, indeed, some have already said that such a death is cruel and that a lethal injection should indeed be administered. That, plainly, is a call for direct, involuntary, intentional killing and euthanasia.

Other potential abuses made possible

  17.  Consider further the situation where a Lasting Attorney is also a beneficiary under the patient's will and stands to gain financially by the patient's death. The scope for abuse is immediately obvious. And in many cases the attorney is likely to be a close relative who might also benefit from the will.

  18.  Lest this scenario be thought unlikely an example should assist.

  19.  In a Florida circuit court an order[44] was made withdrawing and withholding food and fluids from Marjorie E. Nighbert at the behest of her brother, Maynard Nighbert who held a durable (ie Lasting) power of Attorney. Miss Nighbert had suffered a stroke but it was said she had made indications of wishing to be fed. The court appointed a lawyer to investigate her capacity but it was concluded that she did not have capacity to withdraw the LPA and that her brother's decision to require the doctors to refuse food and fluids must be upheld.

  20.  Mrs Nighbert died not long thereafter from lack of food and fluids. Nurses said that she was still making signs requesting to be fed. It is thought that analgesic pain relief was administered but that is thought to be insufficient because dehydration acts upon the osmo-receptors in the brain which cause overall distress to the person and not just in the pain centres. Analgesics affect the pain centres not the osmo-receptors. Mrs Nighbert may well, therefore, have died in great distress.

  21.  This is but one example of the many ways in which an LPA can have the effect of undermining rather than enhancing a patient's autonomy.

  22.  Moreover the patient may not die but may, rather, suffer serious long-term damage instead.

  23.  Consider this example. A young man of 18 who is run over in a motor accident may have suffered a fractured femur but also been rendered unconscious with suspected brain damage. He may have an LPA which provides for the withdrawal of treatment in the event of mental incapacity. In that case the Lasting Attorney may require the withdrawal of treatment on the grounds that the patient would not want to survive in a brain damaged state. The doctor would then be obliged to withhold treatment even though he could readily treat the fractured femur.

  24.  Now suppose that the patient after some months regains consciousness and, in fact, suffers little or no brain damage. despite the prognosis. The fractured femur will not heal itself and by the time some months have passed it may well be too late to heal it. The patient will thus be crippled for life—at the age of 18—and he will have no remedy against the Lasting Attorney (acting within the scope of the LPA), because the attorney has no duty of care and cannot be sued for clinical neuliuence. nor the doctor who will have had to follow the Lasting Attorneys demand to withhold treatment and thus is not liable.

  25.  Thus death may not ensue but, rather, lasting damage that could cripple a healthy person's life.

  26.  The same scenario could apply to an elderly person suffering from, eg stroke. A withholding of treatment may not necessarily result in the patient's death. They may simply deteriorate and live a miserable existence for a much longer period simply because, under the power of the LPA, the Lasting Attorney required the doctor to withhold treatment. This, indeed, appears to be what is happening in the Schiavo case in Florida, USA[45].

  27.  These are but a few of the potential hazards of introducing legally binding powers such as that of a Lasting Power of Attorney.

Consultee or Advocate is preferable to Power of Attorney

  28.  The desire for relatives, loved ones and friends to be consulted does not require anything so sweeping and far-reaching as a power of attorney. A legal requirement for them to be consulted as either statutory consultees or advocates is all that is required. Then if the doctor acts without consulting them he can expect to be open to a civil suit and/or a complaint to his professional body and the matter would be serious.

  29.  The unwelcome scenario of a doctor being required to act against his clinical judgement—or worse to terminate his patient's life—would, however, be avoided. Most patients simply wish to be sure that their appointed advocate or consultee is consulted so that they are kept fully in the picture by the medical staff and can see that the patient is being well cared for. That is what most people desire and a consultee or advocate can achieve that.

  30.  The establishment of a statutory power of attorney goes too far and is attended by very considerable risks not only to the patient but to the medical profession and to the general public as a whole. This is clear from ss.8, 10, 12 and 13 and the powers of the court set out in ss.2 1 and 22 do not obviate the problems outlined above since the court will be concerned to determine whether or not the LPA is valid, not whether the attorney's decision is clinically negligent. If the power is valid and not obtained by fraud or undue pressure, the court's interest lapses save in one circumstance.

  31.  That is outlined at s.2 1(3 )(b), namely where the court is satisfied that the Lasting Attorney has behaved, is behaving or is proposing to behave in a manner incompatible with the patient's best interests. lt can be seen below that there are considerable problems with the "best interests" criteria in MIB but the chief problem is that it is clear that, under the current state of the law (see above) and the wording of s.4 of MIB, it is not necessarily contrary to the patient's "best interests", as qualified by s.4, to suffer loss of life by the withdrawing or withholding of necessary treatment (or even sustenance by tube).

  32.   Given the fact that many people, including doctors, will not be aware of the current state of the law, this aspect of the MID may well not be fully appreciated. Once it is clear that "best interests" may not necessarily rule out the withdrawing or withholding of necessary treatment (or even sustenance by tube) from patients, then the dangers can be readily seen. Since the "best interests" criteria have been widened by s.4 to accommodate the concepts of LPA and AD it can be seen that the introduction of these concepts will permit the new "best interests" criteria to overrule clinical best interests so that a doctor can be required by the Lasting Attorney (and an AD) to do what his clinical judgement rejects—including even withdrawing and withholding sustenance by tube so that the patient then dies of dehydration. Thus it may not necessarily be against the patient's "best interests" to terminate his or her life by removing necessary treatment (or even sustenance by tube).

That distinction will be highly relevant in the case of Advance Decisions (AD) and Lasting Powers of Attorney (LPA) as will be seen because both can contain powers to refuse treatment. If treatment includes food and fluids delivered by tube then the donee of such powers or the AD itself could require medical staff to dehydrate a patient to death, a clear and unambiguous example not only of passive intentional killing (or euthanasia) but one that a doctor could be ordered to undertake on pain of very serious legal sanction.

Re M and Re H and Pretty: Bland has been declared compatible with the Human Rights Act in the cases of Re H and Re M [2001] 1 All ER 801, by the President of the Family Division, Dame Elizabeth Butler-Sloss on the rather unusual grounds that since the withdrawal of the food and fluids delivered by tube was a withdrawal of "treatment", such treatment can be withdrawn if a body of doctors expert in that field would have agreed it was appropriate. This seems to run counter to the principles set out in R v Gibbins & Proctor 13 Crim App Rep (1919) 134, (and other similar cases R v Cox (1992) 12 BMLR 38; R v Bodkin-Adams [1957] CLR 365 (CCC)) and, moreover, it is by no means clear that dehydrating PVS patients to death is a distress-free exercise so as to take the matter outside the range of "degrading and inhuman treatment" under Article 3 of the Convention. The decision may well be re-visited at a higher judicial level, particularly in the light of the decision in the case of R (Pretty) V DPP (SSHD intervening) [2001] 3 WLR 1598; [2002] 1 All ER 2; [2002] 1 FLR 268, in which the application of a person seeking help to commit suicide with legal impunity was refused.

The current law on Advance Decisions: It has been said by some that such are already binding in law. That is highly misleading and is an incomplete statement of the law as it now stands in the light of the leading case of Re: AK [2001] 1 FLR 129. It would be most helpful if the judgement of Mr Justice Hughes could be quoted in full as it offers very practical and explicit advice to doctors beyond which it is unnecessary to go. This is what the judge said at [2001] 1 FLR 134E-G:

    "It is . . . clearly the law that the doctors are not entitled so to act if it is known that the patient, provided he was of sound mind and full capacity, has let it be known that he does not consent and that such treatment is against his wishes. To this extent an advance indication of the wishes of a patient of full capacity and sound mind are effective. Care will of course have to be taken to ensure that such anticipatory declarations of wishes still represent the wishes of the patient. Care must be taken to investigate how long ago the expression of wishes was made. Care must be taken to investigate with what knowledge the expression of wishes was made. All the circumstances in which the expression of wishes was given will of course have to be investigated. In the present case the expression of AK's decision are recent and made not on any hypothetical basis but in the fullest possible knowledge of impending reality."

  33.  Moreover, s.2 l(3)(b) does not provide anything like the kind of protection that, at first blush, it appears to provide. Indeed, this paragraph is likely to serve to confuse rather than allay fears. It will give a deceptive impression of protection that is simply not there.

  34.  Likewise s.3 (1), which stipulates that it will be an offence for a person to ill-treat or wilfully neglect the person over whom they have power of attorney or care. will not of itself prevent decisions to remove treatment or even sustenance by tube). The LPA (or AD) may require such and yet will still have to be followed. Thus. again, the wider and more subjective "best interests" criteria in s.4, which goes beyond clinical best interests and includes decisions under an LPA or an AD so that they are by definition within "best interests", may permit withdrawing and withholding of necessary treatment (or even sustenance by tube) as being outside the patient's "best interests".

  35.  Thus, again, the scope of s.3 (1) is likely to cause untenable and misleading reassurance—a reassurance which is not justified.

  36.  Accordingly, the concept of Lasting Attorney would better be replaced with a concept of statutory consultee and/or advocate.


  37.  Of greater concern still is the power of the court simply to appoint a "Deputy" to make decisions to withdraw and withhold sustenance and treatment even though there is no LPA. Under s.17(l)(d) and (e) of MIB the court-appointed "Deputy" will have power to make "personal welfare" decisions including:

        "giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P"

  38.  Thus all the problems arising under LPAs are reproduced in the appointment of a "Deputy" but the "Deputy" will not even be appointed by the patient himself or herself but rather by a public body. Moreover, it is highly likely that such an appointee will be some official such as the chief Social Worker for the area concerned. Thus the chief Social Worker for the area is likely to be making decisions about the provision of treatment (or even sustenance by tube) to the patient and thus perhaps making a decision about whether that patient should continue to live or not, even though that social worker is not medically qualified and has no medical duty of care. That is clearly a matter for considerable concern.


  39.  The concept of Advance Decisions is similar to the LPA save that instead of giving to an attorney the power to order withdrawing or withholding treatment, a legally binding decision or instrument is made by the patient themselves in advance of becoming incapacitated.

  40.  The same problems arise under these as with LPAs. The patient's autonomy can actually be undermined by him or her being unable to revoke an AD due to lack of capacity whilst nevertheless wishing to be treated or receive sustenance.

  41.  For example, a patient may be "incapacitated" within the meaning of the MIB but still be able to hear or comprehend what is happening. A patient in certain types of condition can still hear and understand but not communicate their wishes to medical staff or others. The patient's wishes may be overridden by their own AD which they are unable to revoke due to being unable to communicate. In such a situation the patient's autonomy is exploded not enhanced if treatment is refused when the patient, in fact, desires it but cannot communicate that desire.

  42.  The obligations of the medical staff will be the same as with LPAs in the sense that any refusal by a doctor to withdraw and withhold treatment including, in some cases, sustenance by tube where the AD stipulates such withdrawal or withholding will put the medical staff at risk of civil and criminal sanction.

  43.  The same potential compromise of the law of homicide is thus risked by the legally binding AD.

  44.  Moreover, since there is nothing in the MIB which requires an AD to be in writing it seems that an oral AD may be sufficient. The scope for abuse in such a situation is correspondingly augmented to a considerable degree, since evidential difficulties are likely to arise along with competing assertions about the existence of an oral AD.

  45.  A person threatening suicide may be held to have made an AD if they state they do not want treatment even if the suicide threat is no more than a cry for help. Some suicides can appear very calm and rational but nevertheless still only intend no more than a cry for help. An AD may mean that they are not treated and simply die or suffer long-term harm.

  46.  Unlike the provisions for LPAs. there is not even an attempt to provide some sort of exclusion by the court on the basis that the AD is not in the patient's "best interests". It may simply be assumed that a patient's best interests are served by his AD even if it requires the doctor to withdraw life-saving treatment, or even sustenance by tube, provided the purely technical formalities of the AD are met.

  47.  This demonstrates clearly that the "best interests" criteria in s.4 do not rule out the termination of life-saving treatment, the withdrawing or withholding of necessary treatment including probably even sustenance by tube, provided that is what the AD stipulates.

  48.  Once again, then, doctors will be in clear danger of being required to act contrary to their clinical judgment and even to be the immediate agent of the patient's likely death by withdrawing or withholding treatment and, where sustenance by tube is withdrawn or withheld, the patients' certain death[46].

  49.  Moreover, by s.25(3), a person who withholds or withdraws such treatment will not be liable even if there is no AD, provided he or she reasonably believes that there was one. That is a very wide "let out" clause and may result in withdrawal of treatment in disturbing situations, and even situations of unscrupulous conduct.

  50.  Thus, once again, the prospect of a criminal charge of assault arises for a failure to terminate the patient's life. This once again turns the law of homicide on its head and radically compromises a fundamental principle of universal medical ethics. It cannot be right for a patient's AD to require a doctor to terminate a patient's life by actively withholding sustenance however delivered. That is not to "let nature take its course" but rather it is to cause a patient to die of thirst. No doctor should be compelled to do such.


  51.  It has been suggested that there is no settled law in relation to the definition of capacity. That is simply wrong as the President of the Family Division, Dame Elizabeth Butler-Sloss, has made clear in the case of Re: B[47] She said that:

      "The general law on mental capacity is, in my judgment, clear and easily to be understood by lawyers . . . In a series of cases during the 1990s the House of Lords and the Court of Appeal restated the long-established principles which govern the law on mental capacity of adults and provided some guidelines in complex medical situations".

  52.  It is not necessary, therefore, to re-define capacity as MIB seeks to do.

  53.  Moreover, the definition in MIB has a number of flaws in the context of the remainder of the Bill. For instance, what constitutes "impairment of or a disturbance of the functioning of the mind or brain"?

  54.  It is very important to be clear because under the remainder of the provisions of MIB there may be decisions of life and death and any uncertainty about the limits of the definitions of incapacity may have potentially terminal consequences.

  55.  For the same reason it is potentially harmful to include within the definition a merely temporary impairment or disturbance. A patient may be in a position to regain capacity and may be merely unable to make a decision by reason merely of a temporary unconsciousness. If treatment were to be withdrawn by order of a Lasting Attorney that might pre-empt a decision that could be made by the patient upon his or her returning to capacity. But the patient may be dead before then. That is plainly a very serious lacuna in the definition of capacity.

  56.  For the present approach of case law to capacity, see inter alia, Re: C and Re: T[48].

  57.  A case law approach is to be preferred rather than the blanket statutory approach to capacity that is suggested in MIB.


  58.  The attempt by previous draft bills, Green papers and consultation papers to redraw "best interests" criteria in a non-clinical manner has been a continuing source of difficulty and controversy.

  59.  There is an intrinsic contradiction contained within such a definition. Medical practitioners are primarily concerned with determining what is in a patient's clinical best interests. They are hardly in a position to determine what is in a patient's non-clinical best interests since that is a matter for the patient's own autonomy. The patient's autonomy to determine matters of a non-clinical nature cannot logically be alienated to a third party, whether by statute or by LPA.

  60.  Clinical best interests do not necessarily coincide with patient wishes. Indeed, a patient may want what is not clinically indicated or refuse what is medically necessary. The question of patient autonomy in decision-making must not be confused with medical opinions as to the clinical best interests of the patient which are a matter of professional judgement. A doctor is not empowered to advise upon non-clinical best interests and it cannot be right to require him or her so to do.

  61.  S.4 of MIB includes a raft of criteria that are not objective and clinical but are vague and subjective. It makes no reference to the criteria in F v West Berkshire HA (Re: F)[49] which sets out an objective framework for clinical best interests which is easily understood by doctors, the courts and the public.

  62.  In matters of life and death it is most unwise to obfuscate the criteria by which doctors must act.

  63.  In addition there is a substantial "let out" clause in s.4(4) in that a carer need only have a "reasonable belief' that they act in a patient's best interests. Since the outcome might be the death of the patient that is simply not sufficient and removes existing protection that incapacitated patients have in law.


  64.  There is simply no requirement for a "general authority" since such already exists at common law as is clear from, inter alia, the case of Re: F[50].

  65.  Moreover, s.7(1)(b) mentions "risk of significant harm to P" but does not make it clear whether or not that means death in all circumstances. That is important since it is sometimes considered that death is not "significant harm" for certain types of patients—a subjective concept which has obvious potential for undermining a patient's autonomy and a doctor's ethical obligations.


  66.  In the light of the above, it is our view that the MIB may not be fully compliant with the Convention, particularly Articles 2 and 3. The recent decision in the Diane Pretty case reinforces our view[51].

  67.  In particular we consider that:

    a.  MIB appears to be incompatible with Article 2 of the Convention because it appears to fall foul of the state's obligation to provide protection of the right to life which right is a positive obligation on the part of Member states.

    b.  MIB does not provide the necessary framework within the context of Article 6 to protect the right to a fair hearing in protection of the individual citizen's right to life under Article 2 and right to be free form inhuman and degrading treatment under Article 3. Dehydration to death must surely amount to inhuman treatment if not more.


  68.  We believe that the concepts of LPA and AD contain flaws of a fundamental nature that not only fail to answer and address the problem of autonomy and protection but, indeed, undermine both.

  69.  We believe that the better course for the assurance of proper consultation of relatives, loved ones and friends in the care and management of patients with mental incapacity is a system of statutory consultees and/or patient advocates.

  70.  Such a system would meet the desires of most patients and would, we believe, obviate most of the situations that have been adumbrated by representative organisations seeking to protect and enhance the autonomy of patients and the protection of the vulnerable incapacitated patient.

September 2003

42   The Bland Case. In the leading case of Airdale NHS Trust v Bland [1999] AC 799, HL, the House of Lords were called upon to decide what should happened to a young man who had suffered severe brain damage after being crushed watching a football match and was rendered into the condition known as PVS, the Permanent or Persistent Vegetative State (which is not to say that he had become like a vegetable-a common misnomer). The court decided, among other things, that a patient in PVS could lawfully have his or her feeding tubes removed so that the patient then died of dehydration. The court said that, in the case of PVS patients, such feeding was medical "treatment" and could be withdrawn. Back

43   At present doctors are forbidden to participate in judicial executions because of the "No Harm" principle and because their vocation is to heal and alleviate pain. The most a doctor can do is testify that the condemned is certifiably dead. Back

44   Case no. 95-4-PSA in the First Circuit Court of Okaloosa County (Probate Division), Circuit Judge Jere Tolton presiding. Back

45   Case no. 8:03-cv-1 860-T-26TTGW in the Tampa Division of the Middle District Court of Florida, following an order by District Judge Richard Lazzara on 30 August 2003. Back

46   The concept of an AD appears to have been first put before Parliament in 1993 in the Medical Treatment (Advance Directives) Bill [HL Bill 73, 1993], by a peer on behalf of the Voluntary Euthanasia Society. This is perhaps unsurprising because it is a legal device for compelling doctors to act in a manner that will terminate the life of a patient intentionally, thus forcing the doctor to act contrary to the fundamental principle of medical ethics to do no harm (Primum Non Nocere) which has always been one of the primarv objections to euthanasia-voluntary or otherwise. It is not voluntary for the doctor faced with a legally binding AD. Thus legally binding ADs could, for the first time, require a doctor to terminate a life and the doctors failure so to do may amount to a criminal offence of assault. This will be so if "treatment" is to include sustenance by tube. Removal of feeding tubes from a patient who is not dying will ensure that the patient dies directly as a result of that removal of tubes. And that removal will have to be carried out by a doctor or a nurse. Back

47   [2002] 1 FLR 1090 at 1095. Back

48   [1994] 1 WLR 290, per Thorpe J; [1993] Fain 95. Back

49   [1990] 2 AC 1. Back

50   Ibid. Back

51   R (Pretty) v DPP et al [2001] 3 WLR 1598. Back

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