18.Memorandum from the Church of England
Community and Public Affairs Unit (MIB 561)
Draft Mental Incapacity Bill
1. The terms of reference of the Church
of England's Community and Public Affairs Unit require it to assist
the Church in making a constructive and informed response to issues
facing contemporary society. The Unit reports to the Archbishops'
Council and, through it, to the General Synod.
2. The Community and Public Affairs Unit
welcomes the consultation on the draft Mental Incapacity Bill,
though it deeply regrets the brevity of the consultation period,
and its timing to coincide with the summer recess.
3. This response is to question four: Are
the proposals in the draft Bill workable and sufficient?and only
in respect of healthcare at the end of life.
5. Clause 1(2) is most worrying in relation
to healthcare at the end of life, because the distinction between
permanent and temporary impairment or disturbance is crucial when
a life or death decision has to be made.
6. Clause 23(2) is also worrying for failing
to make a distinction between a clear, written directive about
withholding or withdrawing treatment, and what may be no more
than a vaguely expressed, and inadequately reported, general wish.
7. If it is established that loss of mental
capacity is permanent, then clear, written advance directives
to withhold or withdraw treatment should normally be respected.
Few medical conditions are as clear-cut as the law might wish.
It needs to be recognised that, as with ordinary wills, indolence
and inertia can mean that even clear, written directives are not
always up to date. There must still be room for medical judgement
and scope for flexibility, therefore.
8. In the case of patients in the vegetative
state the Royal College of Physicians advocates that patients
should be observed for 12 months after head injury (traumatic
brain injury) and six months after other causes, before the state
is judged to be permanent. Only then should discussions of withholding
or withdrawing treatment begin. Under current legislation the
final decision has to come before the courts. The most important
factor is time; the RCP guidance points out that there is no hurry
to diagnose these patients and if there is any doubt, more time
should be taken before a final decision is made. The Mental Incapacity
Bill should require that sufficient time is given for an unhurried
consideration of all the issues, so that the decisions made are
as right as they can be. Guidance on the minimum time needed to
establish permanent mental incapacity should be written into the
9. When loss of mental capacity is not judged
to be permanent, there is no case for bringing a life-threatening
advance decision into effect. The best interests of the person
concerned must lie in the restoration of as much mental capacity
as possible. Clauses 4(2) (a)-(b) refer to this and, if given
due weight, could conflict with an advance decision were it not
for the phrase "at that time" in Clause 23(1)(b). This
is the point at which the failure to distinguish between permanent
and temporary incapacity could open the door to euthanasia. While
the conscious refusal of treatment is a right and does not of
itself constitute euthanasia, the preliminary specification of
conditions under which treatment would be refused might count
as euthanasia if the condition was not a permanent one.
10. No one can fully know in advance how
he or she will feel when a crisis occurs. Although opinion polls
typically show that the general public is 80% in favour of voluntary
euthanasia, only about 3% of the terminally ill favour it. The
80% figure implies that there is a widespread fear of the dying
process, and lack of confidence in the medical profession to manage
that process well. Individuals should, therefore, be allowed the
chance consciously to reconsider a decision if there is a reasonable
likelihood of their being able to do so.
11. The opinion poll statistics may also
be symptomatic of a society that dreads loss of personal control
and the gratitude to others demanded by an unsought-for dependency
on them. The 3% figure indicates that when it comes to it, these
fears subside, or are subsumed under other concerns, perhaps such
as the desire to journey well to death, to effect reconciliations,
settle one's affairs, or just to "live until one dies"
12. Love is at the heart of the Christian
message. The source of love is God and no created being is separated
from that love. In human relationships Christian love always puts
the well being of others above one's own. This paradigm of love
undermines the perspective that personal, individual autonomy
can trump other moral claims, such as the good of all, or the
consciences of those involved in fulfilling a person's wishes.
Human beings are, simultaneously, both individuals and in community,
and moral decision making has to take this dynamic into account.
13. In summary, our overriding concerns
are: with the failure of the Bill to distinguish between temporary
and permanent mental incapacity; with its failure to distinguish
between clear, written advance directives, and more vaguely expressed
general wishes; and with its lack of a framework to allow for
the sometimes messy and always unpredictable dynamic of human
decision making at the end of life.