116.Memorandum from ALERT (MIB 933)
ALERT is an association of those who oppose
the legalisation of euthanasia in all its forms. We are very concerned
that whilst this Bill is intended to protect persons who lack
capacity to make decisions, in its present form it could be used
as an excuse for a doctor or one given power of attorney to shorten
or end a person's life deliberately.
In particular we feel that:
1. Temporary incapacity could be deemed
a reason for someone other than the person lacking capacity to
make a decision, which could prove lethal or otherwise prevent
that person from recovering his or her decision-making capacity.
2. The weight given in the Bill to "living
wills" or advance refusals of treatment may prevent doctors
and carers from treating their patient conscientiously, since
they could be expected to follow to the letter a statement made
by the patient at a time when the present circumstances could
only be imagined, and an informed decision was impossible.
3. Furthermore, if they requested neglect
of ordinary life-sustaining care they would be encouraging assisted
suicide or deliberate killing by omission, both of which are contrary
to human and medical ethics, presently illegal, and harmful not
only to the patient but to the profession of medicine and to society
ALERT has requested the opinion of Richard Gordon,
QC, on the compatibility of the Mental Incapacity Bill with the
European Convention on Human Rights. I enclose his opinion, which
I ask you to put before the Committee as the submission from ALERT.
PT 1: INTRODUCTION
1. I am instructed to advise on behalf of
ALERT as to whether any provisions of the latest version of the
Mental Incapacity Bill ("MIB") are incompatible with
the European Convention on Human Rights ("ECTIR").
2. The remainder of this Opinion is structured
as follows. Pt 2 outlines the content of MIB material to the questions
that I am invited to consider. It also foreshadows areas of potential
ECHR concern. Pt 3 identifies the legal issues that I consider
are relevant for consideration. Pt 4 analyses these issues and
Pt 5 sets out a summary of my conclusions.
PT 2: AN
AND ECHR CONCERNS
3. In general terms, MIB is concerned to
ensure that persons lacking legal capacity to make decisions for
themselves are provided with an effective decision-making process
whereby decisions are made in their best interests.
4. It is, undoubtedly, the case that decision-making
on behalf of incapacitated persons has generated much controversy.
In particular, the decision of the House of Lords in R v. Bournewood
Community and Mental Health NHS Trust, ex p. L  A. C. 458
("Bournewood") highlighted many of the deficiencies
that existed (and continue to exist) in respect of protecting
vulnerable people who lack the requisite relevant decision-making
5. The fact that the current state of the
law is, in relation to incapacitated persons, inadequate does
not, of course, mean that the intended statutory reforms contained
in MJIB are ECER compliant.
6. MIB focuses, for present purposes, on
the following key areas: (a) the general authority to care for
persons without capacity and restrictions on it including `advance
decisions' (clauses 6-7 and clauses 23-25), (b) lasting powers
of attorney (clauses 8-13 and Sch 1), and (c) powers of the Court
7. Before outlining these areas it is important
to bear in kind that, under clause 4(l)MTB:
"Where under this Act any act is done
for, or any decision is made on behalf of a person who lacks capacity,
the act must be done or the decision made in the person's best
8. The concept of a lack of "capacity"
is addressed in clause I. By clause 1(1) "a person lacks
capacity in relation to a matter if at the material time he is
unable to make a decision for himself in relation to the matter
because of an impairment of or a disturbance in the functioning
of the mind or brain". Clause 1(2) clarifies that it is immaterial
whether the impairment/disturbance is permanent or temporary.
9. Best interests is a judgment to be made
in respect of acts or decisions in relation to persons lacking
capacity for each of the key areas identified above. That concept
is not defined in MID but clause 4(2) specifies the matters to
which "regard must be had" in deciding what is in a
person's best interests. These matters are:
(a) Whether the person is likely to have
capacity in relation to the matter in question in the future.
(b) The need to permit and encourage participation
by that person, or to improve his ability to participate, as fully
as possible in anything done for and any decision affecting him.
(c) (So far as ascertainable) the person's
past and present wishes and feelings and the factors which he
would consider if he were able to do so.
(d) (If it is practicable/appropriate to
consult) the views as to the person's wishes and feelings and
as to what would be in his best interests of a number of identified
(e) Whether the purpose for which any action
or decision is required can be as effectively achieved in a manner
less restrictive of his freedom of action.
10. Plainly, this list is not exhaustive.
Nor does not it appear to constrain the decision-maker. It contains
important factors to which regard must be had. The extent, if
any, to which clause 4 and its inclusion of particular factors
relevant to `best interests' is in tension with the ECHR can best
be determined by reference to the relevant acts or decisions that
clause 4 underpins and the concept of `lasting power of attorney'.
These I outline below.
11. It should also be noted that clause
4(4) provides that "In the case of anything done or a decision
made by a person other than the court it shall be a sufficient
compliance with [the best interests objective in clause 4(1)]
If that person reasonably believes that what he does or decides
is in the best interests of the person concerned."
Care of Persons without Capacity/Restrictions/Advance
12. Clause 6(1) M113 contains a general
authority for any person to do an act when providing any form
of care for another person' ("P") provided either that
P lacks or that the person reasonably believes that P lacks capacity
in relation to the matter in question and that it is, in all the
circumstances, reasonable for that person to do the act. Clause
6(6) makes it clear that the general authority is subject both
to other provisions of MIB and also to clause 4 on best interests
13. Clause 7 MIB places certain restrictions
on the operation of the general authority. Thus: (i) neither force
nor the threat of force may be used to secure an act which P resists
and/or (ii) P's liberty of movement may not be restricted `unless
the person reasonably believes that it is necessary to do so to
avert a substantial risk of significant harm to P' (clause 7(1)).
14. Notwithstanding clause 7(1) it seems
(see below) that a person with lasting power of attorney (or a
Court-appointed deputy) could, under clause 7(2), veto action
by a person using force or the threat of force with the intent
of averting a substantial risk of significant harm to P unless
such action fell under clause 7(3) (action necessary to avert
death/serious deterioration whilst an Order is sought from the
15. Materially, therefore, there has been
introduced by somewhat convoluted provisions in MIB a new care
regime that considerably restricts the very wide form of "necessity"
that the House of Lords had endorsed in Bournewood.
16. Clauses 26-28 exempt certain specified
forms of treatment/procedure (as, eg, infertility treatment) from
the operation of MIB.
17. Clauses 23-25 endorse the concept of
`advance decisions to refuse treatment. Where a person, aged 18
or over, possessing capacity has indicated a refusal of specified
medical treatment at a later time and in such circumstances as
he may specify and at a point when he lacks the necessary capacity
to give consent then the specified treatment is not to be carried
out or continued (see clauses 23(1) and 25(1)).
18. No liability is imposed on a person
for withholding treatment/procedure if he believes that there
is a relevant valid advance decision and that there are reasonable
grounds for believing that such advance decision applies to the
situation (see clause 25(3)). Conversely, there appears to be
at least potentially civil liability for carrying out or continuing
treatment unless a person does not know and has no reasonable
grounds for believing that an advance decision exists which is
valid and applicable to the treatment (see clause 25(2)).
19. There are no specified formalities (or
system of registration) for the making of an advance decision
and (see clause 23(2)) it may be expressed in broad terms or non-scientific
language. It may apply to all forms of treatment although, by
clause 24(5), an advance decision is not applicable to life-sustaining
treatment unless P specified that his decision was not to apply
to such treatment.
20. Clause 25(5) provides that nothing in
an apparent advance decision precludes a person from providing
life-sustaining treatment or doing any act reasonably believed
to be necessary to prevent a serious deterioration in P's condition
while a ruling as respects any relevant issue is sought from the
Lasting Powers of Attorney
21. This new concept, replacing enduring
power of attorney, is covered in MITB in clauses 8-13 and Schedule
1 MIB. It is, in company with all other powers under MJB, exercisable
subject to clause 4 above (see clause 8(4)(a)). In other words,
a person exercising lasting powers of attorney must act in P's
best interests. It appears to be sufficient compliance if the
donee of the power reasonably believes that what he does or decides
is in the best interests of the person concerned (see clause 4(6)).
However, unlike a person exercising the general power in clause
6 it does not, in all the circumstances, appear to have to be
reasonable for the donee to do the act (cf clause 6(1)(b)).
22. Essentially, the concept enables a person
(the donor) to create a power of attorney in another person (the
donee) that enables decisions to be made on behalf of the donor
by the donee as to P's personal welfare or specified matters concerning
P's personal welfare and P's property and affairs or specified
matters concerning P's property and affairs and which includes
authority to make such decisions in circumstances where P no longer
has capacity (see clause 8(1)).
23. The different species of requirements
for valid execution of lasting powers of attorney are contained
in clauses 8-9 and Schedule 1. Briefly:
(a) There must be compliance with a prescribed
form, though immaterial deviation is permissible (Schedule 1 paras
(b) There are requirements of age/status
as between donor and donee (clause 9). In general, however, any
person over 18 may become a donee provided (at least in relation
to matters concerning the donor's property and financial affairs)
that they are not (or do not become) bankrupt.
(c) There are also general requirements as
to registration (Schedule 1 Pts 2-3).
24. Clauses 10-11 contain provisions relevant
to the scope of a continuing power of attorney. In particular,
the donee is not authorised use or threaten force to secure the
doing of an act which P resists or to restrict P's liberty of
movement whether or not P resists unless P lacks or the donee
reasonably believes that P lacks relevant capacity and the donee
reasonably believes that it is necessary to do the act to avert
a substantial risk of significant harm to P.
25. Clauses 21-22, in particular give certain
powers to the Court in relation to the validity and operation
of lasting powers of attorney. including exercising powers of
supervision over the conduct of the donee and cancelling registration.
26. Other provisions of relevance include
the creation of an officer known as the Public Guardian (clause
47) and the significant responsibilities that he has in respect
of lasting powers of attorney (see clause 48) including the supervision
of donees of such powers and general control of the register (with
powers of cancellation).
27. The Court has supplementary power under
MIB to make declarations (clause 15) and other Orders in respect
of capacity and advance refusals (clause 37). It may make decisions
in respect of a person's health and welfare or appoint a deputy
although, by clause 16(4)(a)) the Court's decision over that of
a deputy is accorded statutory preference.
28. Clause 26 does not allow decisions to
be made on behalf of an incapacitated person in respect of a number
of specified mattersnone of them, however, include the
decision to die.
29. By clause 30 the Lord Chancellor (sic)
has power to prepare a Code of Practice on what constitutes capacity
and how persons with relevant functions under MIB should act.
30. The relevant "Court" under
MIB is the Court of Protection (see clause 34). Access to the
Court is governed by clause 40 which, generally, requires leave
to be given for applications to be made to it. The matters to
which the Court may have regard in giving leave are set out in
clause 40(3) and include sufficient connection with the subject
matter and reasons for the application. No leave is required (see
clause 40(1)) for an application to the Court by or on behalf
of a person who is alleged to be (or is) without capacity, by
the donor or donee of a lasting power of attorney to which the
application relates, by a Court appointed deputy, by a person
named in an existing Order, or by a person with parental responsibility
for such person if under 18.
31. MIB gives rise to three main areas of
ECHR concern. Briefly stated, they are in my view those issues
(a) The right to life contained in Article
(b) The right to protection from inhuman
and degrading treatment under Article 3.
(c) The right of access to a court provided
for in Article 6.
32. Put shortly, and as highlighted above,
MIB contains a series of provisions that are ostensibly designed
to put persons lacking capacity (so far as is possible) on a par
with those who possess autonomy. The difficulty with this kind
of endeavour is that, unless the statutory mechanisms are very
carefully drafted, there is very real potential for abuse, exploitation
and violation of fundamental Convention rights.
33. In my view, for the reasons set out
below, there are Convention concerns as to the drafting of MIB
although it is an improvement on the version on which I previously
PT 3: THE
34. The most directly relevant issues of
law seem, therefore, to me to be reducible to the following general
(a) Are there any provisions of MIB that
are, at least potentially, incompatible with Article 2 ECHR (taken
by itself or in conjunction with other ECHR provisions, most notably
(b) Are there any provisions of MIB that
are, at least potentially, incompatible with Article 3 ECHR (similarly
(c) Are there any provisions that are potentially
incompatible with any other provision of the ECHR?
35. I will address these general questions
PT 4: ANALYSIS
ARTICLES 2 AND
6 ECHR AND DOMESTIC
The General Position under Article 2
36. Article 2.1 ECHR provides (materially)
"Everyone`s right to life shall be protected
by law. No one shall be deprived of life intentionally . . . "
37. Article 2 ECHR, therefore, contains
a negative restraint on the State but also requires the State
to take active steps for the protection of life: a so-called positive
38. The locus classicus is the decision
of the Strasbourg Court in Osman v United Kingdom
(1998) 29 EHRR 245. The Court stated that:
"115. The Court notes that the first sentence
of Article 2(1) enjoins the State not only to refrain from the
intentional and unlawful taking of lfe, but also to take appropriate
steps to safeguard the lives of those within its jurisdiction.
It is common ground that the State's obligation in this respect
extends beyond its primary duty to secure the right to life .
39. A person possessing the requisite capacity
to make decisions for themselves may refuse to be treated. However
irrational or otherwise unreasonable the decision is, it must
40. But the position is different in relation
to persons lacking legal competence. There, the position in law
is that a doctor may treat a patient who is incapable of giving
consent, provided that the treatment is in the patient's best
41. In domestic law there is a strong presumption
that medical practitioners should take all steps capable of preserving
human life. But, according to House of Lords authority in Airedale
NHS Trust v. Bland  A. C. 789, 867 ("Bland"):
"The doctor who is caring for . . .
a patient cannot . . . be under an absolute obligation
to prolong his life by any means available to him, regardless
of the quality of the patient's life.
42. Importantly, it has also been held that
where the continuance of medical care of a patient in a permanent
vegetative state would not be in his best interests, there was
no breach of Article 2 if that care was withdrawn (see: NHS
Trust A v M, NHS TrustB v H  2 W.L.R. 942)
43. There is, then, if M&H (and
Bland) are right a crucial difference between acts and
omissions. A positive act that causes a person's death is murder.
But the position is different where death is caused by omission
or where the primary purpose is not to cause death (see, especially,
in this respect Bland).
44. Many do not agree with the ratio in
Bland and M&H and with the analytic distinction
between acts or omissions in the present context. As Butler-Sloss
P observed in M&H (at p. 949, paragraph 19) "the
question of discontinuing artificial nutrition and hydration to
a patient in a permanent vegetative state has not yet arisen in
the European Court of Human Rights. . ."
45. However, in that context Article 2 was,
fully, analysed in M&H as follows:
(a) Article 2 clearly constitutes a negative
obligation on the State to refrain from taking life intentionally.
It also imposes a positive obligation on the State to give life-sustaining
treatment in circumstances where, according to responsible medical
opinion, such treatment is in the best interests of the patient.
It does not, however, impose an absolute obligation to treat if
such treatment would be futile.
(b) An omission to provide treatment by a
medical team will only be incompatible with Article 2 where the
circumstances are such as to impose a positive obligation on the
State to take steps to prolong a patient's life. (Butler Sloss
P clarified that her judgment was only addressing the situation
where treatment was to be discontinued and was not concerned with
acts by doctors or other members of the clinical team which might
have the effect of shortening life).
(c) The quality of life may, under Article
2, be relevant to the clinical assessment of whether it is in
the patient's best interests for treatment to continue but does
not form part of the question whether this is an intentional deprivation
of life within the meaning of Article 2.
46. For the purpose of this Opinion and
for the purpose of analysing the deficiencies in MIB, I must take
the law to be as stated in M&H
47. The prohibition against taking active
steps to end life is one that is enshrined in Article 2 ECHR.
A person may decide to end his or her own life but it is certainly
consistent with Article 2 that the State does not facilitate third
party assistance. The decriminalisation of suicide may be said
to reduce suicide by encouraging individuals to seek help. However,
the prohibition against assisting suicide contained in s. 2(1)
of the Suicide Act is entirely lawful because it operates to prevent
the crime of murder.
48. In Pretty v United Kingdom
(Application No 2346/02) the European Court of Human Rights
made it clear that mercy killing by a third party, albeit at the
behest of the person affected, was legitimately prohibited by
the State under Article 2 ECHR. The Strasbourg Court observed
"39. The consistent emphasis in all
the cases before the Court has been the obligation of the State
to protect life. The Court is not persuaded that the "right
to life" guaranteed in Article 2 can be interpreted as involving
a negative aspect . . . it is unconcerned with issues
to do with the quality of life or what a person chooses to do
with his or her life . . . nor can it create a right to
self-determination in the sense of conferring on an individual
the entitlement to choose death rather than life.
40. The Court accordingly finds that no right
to die, whether at the hands of a third person or with the assistance
of a public authority, can be derived from Article 2 of the Convention.
It is confirmed in this view by the recent Recommendation 1418. . .
41. The applicant has argued that a failure
to acknowledge a right to die under the Convention would place
those countries which do permit assisted suicide in breach of
[E]ven in circumstances prevailing in a particular
country which permitted assisted suicide, that would not assist
the applicant in this case, [with] the very different propositionthat
the United Kingdom would be in breach of its obligations under
Article 2 if it did not allow assisted suicide . . ."
49. Article 6(1) ECHR provides (materially)
"In the determination of his civil rights
and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law."
50. Self-evidently, in order to obtain a
hearing by a Court there must be access to that Court. The right
of access to a Court is, therefore, intrinsic toor necessarily
implicit inthe express rights guaranteed by Article 6:
see Golder v UK (1975) 1 EHRR 524. It is also well
established that even a temporary impediment on access may violate
51. Clearly, the right to protection of
life under Article 2 (in both the positive and negatives senses
identified above) and/or the right to a Court hearing for the
determination of that civil right and the obligation not to be
assisted to kill oneself are embraced by (respectively) the positive
obligations under Article 2 and the due process rights under Article
MIB AND ARTICLES
52. In my opinion there are at least two
major deficiencies in MIB which contravene the obligations enshrined
in Article 2 taken in conjunction with the right to access to
a Court under Article 6.
53. The deficiencies are in relation to:
(a) the extensive power conferred upon persons under the general
authority and, in particular the powers conferred on the donee
of lasting powers of attorney, and (b) MIB's treatment of advance
decisions to refuse treatment coupled, in each case, with the
limitations on access to the Court contained in MIB clause 40.
8-13 AND SCHEDULE
54. The difficulty with MIB, in this respect,
is that its provisionstaken togetherfall short of
the likely content of the positive obligation in Article 2 to
give practical and effective protection to the right to life of
a person without capacity and/or to the right to determination
by a Court of the civil right/obligation vested in such person
not to have his/her death assisted by a third party by positive
55. Lasting powers of attorney enables the
person on whom the power has been conferred to exercise a relevant
power provided, only, that he or she reasonably believes the donor
to be without the requisite capacity (see clauses 8(4)(a) and
4(4)). There is no proposed statutory check on the assumed exercise
of power by the donee beyond the clause 40 right of access to
the Court and general supervision of the donee by the Public Guardian
(see above and clause 48(1)(c)-(d)). So, if the donee has an unreasonable
(and, perhaps, unjustified) belief in a donor's lack of capacity
there is at least potential scope for abuse of power. Nor is there
any specific statutory threshold by which the donee's reasonable
belief falls to be tested at the time of the asserted assumption
(a) Armed with at least an asserted reasonable
belief in the donor's incapacity, the donee may, amongst other
things, refuse consent (at least where an advance refusal expressly
authorises) to treatment or procedure necessary to sustain life
56. Conversely, there is no obvious statutory
obligation on a donee (or anyone else) under MIB to seek/provide
life saving treatment on behalf of an incapacitated donor or on
any person to take such steps in respect of a person lacking capacity
who is not a donor.
57. Nor, as I read the combination of clauses
6-7 may action be taken to avert a substantial risk of significant
harm to a donor (see clause 6(1)) in circumstances where the donee/deputy
objects (see clause 6(2)) and where the limitation in clause 6(3)
(temporary life sustaining treatment or act to prevent serious
deterioration in condition whilst Court Order sought) does not
apply. It is not immediately obvious that the concept of "substantial
risk of significant harm" in clause 6(1) is synonymous with
the limitation in clause 6(3) even were the person seeking so
to act about to seek a Court Order. So, it is distinctly possible
that MIB precludes acts (if contrary to a donee's directions)
which are reasonably believed to be necessary to avert a substantial
risk of significant harm to the donor but which do not threaten
immediate death or immediate serious deterioration in condition.
In such circumstances, even if failure to act could constitute
a potential threat to life the donee could prevent the act from
being undertaken. In any event, it would be necessary for the
person seeking to benefit the incapacitated person to seek a Court
Order to be empowered to do anything to "trump" the
donee's wishes. Even then, such person may not (see clause 40)
have an immediate right of access to a Court but might have to
seek the Court's permission to act at all.
58. In making decisions a donee is, generally,
bound by MIB clause 4. But the difficulty here is, of course,
(and it applies generally to any person exercising general authority
under clause 6) that the assumed past and present wishes and feelings
of the donor or others (see clause 4(2)(c) and 4(2)(d)) as to
what may be in the donor's best interests may be very much contrary
to the donor's true best interests: such persons may, for example,
be temporarily suicidal or influenced by factors which have little
to do with his or her general welfare. Similarly, they are only
factors to be taken into account. But, the donee (and any other
person exercising general authority) has a general discretion
to override those views: in particular all that the donee has
to show if called upon is that he reasonably believed that what
he was consenting to or refusing was in the donor's best interests.
It is unclear why the donee of lasting powers of attorney is given
greater licence to act contrary to P's best interests than other
persons exercising general authority where it must, at least,
be shown that the action taken is reasonable.
59. Having regard to clause 4 two things
are clear. First, the statutory criteria are an attempt to put
the donor in the position of a person with capacity. But there
is no true analogue because a person with capacity may often act
autonomously but contrary to his or her best interests. This attempt
at substituted capacity reflects an internal contradiction in
the logic of best interests. Secondly, the legal threshold at
which a donee is empowered to make life or death decisions on
behalf of the donor is opaque, subject to potential abuse and
not subject to effective control by the Court prior to the action
60. Given (see M&H above) the
fact that "best interests" is integral to the positive
obligation on the State intrinsic to Article 2 to preserve life
and given, also, that this concept is also integral to the negative
obligations contained in Article 2 there are several vices in
MIB. There are few safeguards to prevent a donee acting in a way
that is truly antithetical to a clinical judgment of where a patient's
best interests lie. The presumed wishes of a person (even their
actual wishes) have only a tangential connection with what is
in their best interests. To equate the two is to confuse best
interests and autonomy. To allow a donee to make discontinuance
of treatment decisions without even having, on an objective basis,
to achieve the best interests objective at all is ostensibly in
direct conflict with the requirements of Article 2 as enunciated
in M&H. Finally, there is no obvious statutory control
so as to ensure compliance with the positive obligations in Article
61. These deficiencies are both systemic
and procedural. The procedural deficiencies are where Article
6 ECHR engages. The right of access to a Court under clause 40
is, in my view, inadequate to comply with the need for immediate
access to a Court, without impediment, to safeguard the interests
of incapacitated persons in an area of considerable moral and
ethical controversy which may, in many instances, be at variance
with objective clinical judgment.
62. Article 2 rights and the obligations
inherent in domestic criminal law are plainly "civil rights
and obligations" within the ambit of Article 2. Yet, the
only persons who have (material) automatic access to a Court (that
is, without needing permission) are the donee of lasting powers
of attorney or the person lacking (or alleged to be lacking) capacity:
see clause 40(1). But it is, in this context at least, the danger
of exploitation and insufficient protection by the donee (and
the concomitant vulnerability of the donor) that may make it essential
for the donor's civil rights and obligations to be reviewed by
63. There is no obvious mechanism for the
Court to become involved. Certainly, the Court can become involved
and probably (but not inevitably) would if application were made
to it. But there is no mechanism for the Court to become involved
at all. There is no compulsion on a donee to bring the matter
before the Court at all. This is, to my mind, a serious omission
in Article 6 protection in this area of the law given the substantial
and effective protection that are considered to be fundamental
to ECHR protection. It is also, to say the least, a temporary
impediment to access (and, therefore, also a breach of Article
6) for obviously interested parties (such as those exercising
general authority under clause 6) to require the leave of the
Court under clause 40(2) and for there to be a general prohibition
against applications without leave under clause 40. A fortiori
given the fact that there is no statutory mechanism for the involvement
of the Court at all.
64. It is, undoubtedly, the case that a
person of adult age may make (if he/she has the requisite legal
capacity) decisions to refuse life saving treatment even if that
decision is irrational or contrary to that person's best interests:
of the many cases see, eg, Re T  1 WL.R. 782. This
is because, at least in general terms, the principle of autonomy
or self-determination (provided that it does not affect the rights
of other persons) "trumps" that of protecting a person
with capacity from acting contrary to their best interests.
65. So it is that it has sometimes been
thought to be merely a reflection of the autonomy principle for
a person to make a "living will" or an "advance
directive" or (in the language of MIB) an advance decision
to refuse treatment: in other words, to make future provision
for refusing life saving treatment at a time when they no longer
66. The difficulty with the concept of advance
refusal as addressed in MIB is that there are no obvious safeguards
for ensuring that the autonomy principle is being safeguarded
or the best interests principle eroded. Put more concretely, it
is essential, for protecting Article 2 rights, to ensure that
a person who has made an advance decision to refuse treatment
possessed the requisite autonomy at the time of making the refusal
and has not changed his or her mind since.
67. If those elementary matters are not
required to be carefully established prior to the enforcement
of an advance decision to refuse treatment there will be a necessary
violation of the positive and negative obligations inherent in
Article 2 because the true "best interests" of the patient
will never fall for consideration, it being assumed that the advance
refusal reflects an expression of autonomy.
68. To my mind the following deficiencies
appear from the above-mentioned provisions of MIB:
(a) where are no formal requirements
for establishing advance refusals. Nor is there a system of registration
comparable to that created for lasting powers of attorney,
(b) The Court has power to examine the
validity of an advance refusal. But there is no mechanism for
challenge or obvious standing under clause 40 without the need,
at least generally, for the Court's leave to make the application.
(c) In such circumstances it may be difficult,
in the extreme, for an advance refusal to be the subject of successful
challenge many years after it had been made.
(d) There are obvious dangers of exploitation
of a vulnerable person who may be coerced into making an advance
decision to refuse treatment. Further, the evidence needed to
establish such advance refusal may often be dependent upon the
oral testimony of those with a vested interest in contending that
there has been such advance refusal. Advance refusal (see above)
has considerable legal effect in that liability is imposed for
not implementing it where there are reasonable grounds for believing
that it applies to the circumstances of the case (clause 25(2)).
Further (clause 25(3)) no liability is imposed for implementing
an advance refusal where it is reasonably believed to apply. So,
a life or death decision may be made on the grounds of a of a
document many years old which on the most tenuous evidence is
reasonably believed to apply.
(e) Nothing in MIB implies, still less
compels, any particular investigation of the circumstances of
an advance decision to refuse treatment even though circumstances
may have changed over the intervening years, another (but concealed)
document made revoking the first or the fact of having made the
advance refusal forgotten.
69. The above represent, in my opinion,
deficiencies in an area where protection of incapacitated persons
lies at the heart of the right to life under Article 2. The dangers
of the proposed statutory regime for implementing advance decisions
of refusal of consent to treatment contains no mechanism whatever
for ensuring that the positive obligation in Article 2 protection
are complied with, namely (see above) the obligation on the State
to give life-sustaining treatment in circumstances where, according
to responsible medical opinion, such treatment is in the best
interests of the patient. An advance refusal will, under the MIB
regime, remove this obligation because it will be seen as an expression
of autonomy that, in some fashion, immunises the State from having
to consider best interests at all.
70. In my opinion MIB fails, in the area
of advance refusal, to legislate so as to protect incapacitated
persons from having life saving treatment undertaken in their
best interests as Article 2 requires (even on domestic case-law).
It fails to do so because it legislates on a flawed premisethe
premise being that the most shaky evidence for an advance decision
to refuse treatment no matter when alleged to have been made and
without the need to establish the specific circumstances in which
it was made. Is, in practice, presumed to be a valid expression
of autonomy for all time. In my view this is a breach not merely
of Article 2 but also of the due process safeguards contained
in Article 6. There is, in most circumstances, no "right
of access" to the Court for determination of validity of
an advance refusal (see clause 40). On the other hand there is
potential civil liability for (at least in general terms) not
responding positively to perhaps potentially weak evidence suggesting
the existence of an advance decision and, at the same time, an
immunity from liability for responding positively to such evidence.
71. In Convention terms this is, I consider
and advise, a difficult position for the legislature to adopt.
72. Article 3 ECHR provides as follows:
"No one shall be subjected to torture or
to inhuman or degrading treatment and punishment."
73. This is, like Article 2, an absolute
Convention obligation. Here, we are not concerned with either
torture or punishment. The question is whether, taken alone or
in conjunction with Article 6, MIB causes or permits the possibility
of inhuman or degrading medical treatment.
74. The concern in respect of Article 3
ECHIR is, perhaps, merely a different way of formulating the Article
2 and 6 concerns (above). The obvious scope for treating vulnerable
persons contrary to their best interests in MIB and in a way which
deprives them of life is considerable. This arises both as a matter
of structure and also in terms of the absence of adequate procedural
protection. I doubt, though, if the Article 3 concerns on this
score add much to the analysis set out above.
75. A particular concern arises in respect
of clauses 7 and 10. These prevent, amongst other things (and
subject to qualification), "the use or threat of force to
secure the doing of an act which Presists" (underlining added).
76. P is, by definition, the person lacking capacity.
But, of course, the entire rationale for decision-making by a
person without capacity is that such person is incapable of making
an informed decision for himself or herself.
77. So, if that is right, it must follow
that a person lacking capacity is legally incapable of resisting
in a meaningful sense. In Convention terms this means that a discrimination
is necessarily embedded into MIB, namely as between those patients
lacking capacity who, nonetheless, articulate resistance on the
one hand and those, on the other, who may be incapable of communicating
resistance (perhaps because of paralysis or other disability)
or who simply do not resist This represents, on the face of it,
a permitted intrusion of privacy in the case of one type of incapacitated
person which is denied to another type of incapacitated person
contrary to Article 8 ECHR. There is no obvious objective justification
for this differential treatment.
PT 5: CONCLUSIONS
78. My primary conclusions are as follows:
(a) MIB is incompatible with Article
2 taken in conjunction with Article 6 ECHR because it fails to
comply with the State's obligations under Article 2 to provide
practical and effective protection of the right to life.
(b) In particular, the concept of "best
interests" in MIB is defined by reference to criteria that
are, at least primarily, relevant to autonomy as opposed to best
interests. The decision-making powers of the donee of the lasting
powers of attorney are made by reference to such criteria but
leaving an area of judgment to the donee that is neither statutorily
defined nor protected by access to the Court within the meaning
of Article 6. Similar concerns arise in respect of exercise of
the general authority.
(c) The machinery of recognition and
implementation of advance decisions to refuse treatment are similarly
contrary to Article 2 because they provide wholly inadequate protection
for safeguarding the best interests of persons entitled to protection
under Article 2 at the time that life saving medical treatment
falls to be considered.
(d) There are also concerns, under Article 3,
in respect of the matters itemised under Article 2 (above). But
these concerns do not add to the analysis.
(e) Article 14, protecting as it does
against discrimination in the enjoyment of Convention rights,
appears to discriminate against those incapacitated persons who
can communicate objection to certain proposed conduct (see clauses
7 and 10) and those who cannot. Such discrimination is neither
logical nor (therefore) objectively justified under Article 14.
79. I shall be happy to assist further if
and when required.
Richard Gordon QC
128 The Court has certain powers if satisfied that
the parties intended to create a lasting power of attorney (see
Schedule 1 paragraph 3(2)). Back
This is a reference to the Council of Europe's Recommendation
1418 (1999) on the Protection of Human Rights and the Dignity
of the Terminally Ill and Dying. Back