74.Memorandum from Rev Dr Francis Marsden
May I establish my own interest in the draft
Bill in question? For 19 years, I have been a priest of the Catholic
Church. For seven of those years I was chaplain to either a large
general hospital (Walton Liverpool) with busy AED and neurological
departments, or to geriatric hospitals in Chorley, Lancashire.
In my current parish, we have two nursing/residential homes for
the elderly and I occasionally take the hospital bleep to substitute
for the duty chaplain. All my priestly life I have regularly visited
the sick and the elderly parishioners in their homes with Holy
On a personal level, moreover, my mother is
now 85 and has problems with arthritis, a faulty heart valve,
blood clotting and glaucoma. I have delegated Power of Attorney
for her, should she ever become incapable I also exercised Power
of Attorney for my mother's cousin, my godmother. For several
years until her death in 1996, I administered her affairs when
she was incapable with Parkinson's Disease and in a residential
I also lecture at Maryvale Institute Birmingham
(distance learning) on a Medical Ethics Module for their MA in
Personal, Spiritual and Moral Development.
The aspect of the Mental Incapacity Bill which
concerns me is in particular the section on Advance Directives.
Previously the Government had said that it did not intend to legislate
on "living wills." I wish therefore to comment upon
Paras 23-25 of the draft Bill.
There are several problems with such advance
The state of mind of a person in good health
is not necessarily that of a person when they are ill several
years later. A person's decisions and thoughts may change radically
when they are seriously ill. The patient may then find himself
at the mercy of a written document made a long time ago, which
no longer expresses his/her intentions, and yet be incapable of
signifying his/her altered wishes. Even if he or she does make
some indication that he wants a particular treatment, if he/she
is deemed not to have the mental capacity to express his or her
wishes, then that indication is likely to be ignored. Such a document
may then come to express the dictatorship of the past over the
The draft Bill does not appear to stipulate
that an Advance Decision to refuse treatment must have been properly
drafted, written down and witnessed. "Word of mouth"
reports, where someone with Lasting Power of Attorney merely says
that "P said to me she didn't want to be resuscitated in
the event of X" or "P didn't want to be treated in the
event of Y" are surely inadequate and open to gross abuses.
Large sums of money and property are sometimes in the balance
when a person nears death, and sad to say, it is hardly unknown
for certain relatives to have a vested interest in death occurring
sooner rather than later. The very sick and the dying need much
better protection than this Bill affords.
The House of Lords Select Committee, which reported
in 1994, opposed giving advance decisions greater legal force,
saying this would risk "depriving patients of the benefit
of the doctor's professional expertise and of new treatment and
procedures which may have become available since the Advance Directive
Secondly, I note that the sections 23-25 cover
only "Advance decisions to refuse treatment." Surely,
this should be widened to include Advance decisions to stipulate
certain sorts of treatment, when these are medically feasible.
There has been considerable concern ever since
the Bland judgement, which in my opinion mistakenly re-classified
artificial nutrition and hydration (food and water delivered by
nasogastric or intravenous tubes) as medical treatment rather
than a basic human right. This opened the way for artificial feeding
to be withdrawn if it was deemed "inappropriate." However,
food and water is a basic human right which I would maintain can
never morally be "withdrawn." We must do all we can
to make sure a patient receives nutrition until it becomes practically
impossible, and the person is dying anyway from other causes.
Certainly, the starving to death of patients eg stroke victims,
who are not terminally ill, but seriously incapacitated, is a
form of passive euthanasia morally equivalent to homicide. Such
euthanasia by omission is contrary to the fundamental principle
of medical ethics: primum non nocerefirst, do no
The possibility, even the remote possibility,
that a relative with Power of Attorney might be able to give legally
binding instructions to medical staff (who could be prosecuted
for disobeying) that a sick relative is to be deprived of hydration
and nutrition, and condemned to a slow and painful death by starvation
and thirst, is abhorrent.
Euthanasia includes not merely active lethal
measures to procure the speedy death of a patient, but also the
deliberate omission of available medical care, in order to hasten
their demise. Disthanasia, the undue and burdensome prolongation
of life to no purpose, is also wrong. There does come a time to
let nature take its course: I have on several occasions been with
families in the intensive care ward when the time came for a respirator
to be turned off, because a severely brain damaged patient had
no chance of recovery whatsoever and was by all accounts already
brain dead. It was my role to commend the dying person's soul
to Almighty God. However, it is not the role of the doctor or
medical staff to hasten a seriously ill or dying person on their
As a priest, I consider that the last days of
a person's life on this earth are of immense spiritual importance.
It is a time for the dying individual to make their peace with
God, and with their family and relatives, if they need to. As
a person approaches death, and I have seen this many times, it
is as if the veil of transcendence grows very thin, and for all
concerned it can be a most moving and valuable experience of spiritual
reality. It may also be an area of experience in which decisions
about advance directives made long ago in robust health, now have
little value given the new realities of the situation.
If the Government is sincere in its stated opposition
to euthanasia, and wishes to advance the true best interests of
people who are mentally incapacitated, it should make it clear
that whatever a person may have (allegedly?) stated in an advance
decision, there can be no obligation on doctors to carry out unethical
acts such as depriving a person of food or fluids or appropriate
treatment. Incapacitated people, like all human beings, are entitled
to the best available treatment, given in their clinical best
It is a valuable safeguard that the Mental Incapacity
Bill provides for punishment if a person "ill treats or wilfully
neglects" a mentally incapacitated person in his or her care.
However, in permitting the withholding or withdrawal of food and
fluids, with the purpose of ending life, the Bill itself sanctions
such "wilful neglect" by starving and dehydrating a
vulnerable person to death.
Section 4 of the draft MIB also lacks clarity,
insofar as it attempts to define a patient's "best interests"
without clear reference to their health and best clinical interests.
Are not "Past and present wishes and feetings" rather
too nebulous without some clearer legal mechanism for ascertaining
precisely how those wishes are to be expressed and evaluated?
What about people who are severely depressed or suicidal? Would
medical staff have to go along with their wishes and make no attempt
to bring them out of a clinical depression? Are there times when
the impartial but concerned and experienced observer does know
better than the individual himself or herself what is good for
them? The policeman who goes up onto the roof of a block of flats
to talk a suicidal man into coming down is, in a way, being paternalistic.
Unlimited autonomy would suggest that we just
leave the man to kill himself if he so wishes, and make no attempt
to dissuade him for fear of infringing his "autonomy."
Unlimited autonomy can be hard to live with. There are times when
we are victims of our own mood swings and emotional state, and
need the reassurance and guidance of others.
Moreover, there needs to be some over-riding
statement about the preservation of life, health and consciousness
wherever possible, along with adequate pain control treatment.
This encompasses the basic role of the medical profession, but
it appears to be lacking in the draft.
I hope that necessary amendments can be made
which will cover these points, which I am sure many other people
have also made.