Formal response to the Lord Chancellor's Department's Consultation Paper, 'Making Decisions: Helping People Who Have Difficulty Deciding For Themselves'. July 2002

House of Lords
London
SW1A 0PW
Virginia Gray
Lord Chancellor’s Department
Family Policy Division 1
3rd Floor
Southside
105 Victoria Street
London
SW1E 6QT
3rd July 2002
Dear Ms Gray,
This letter constitutes my formal response to the Lord Chancellor’s Department’s Consultation Paper, ‘Making Decisions: Helping People Who Have Difficulty Deciding For Themselves’. I do not wish for my response to be kept confidential.
I am gravely concerned that the Government expresses its thanks in the Consultation Paper to the Voluntary Euthanasia Society for “their help in taking this forward” (p. 1) and in a number of the guidance leaflets recommends the reader consult the Voluntary Euthanasia Society (VES), particularly with regard to the preparation of ‘living wills’ (see, for example, p. 106).
I fully appreciate that the Lord Chancellor’s Department would have sought assistance from a number of groups involved in the area of mental incapacity prior to publication of the Consultation Paper. However, this doesn’t explain the involvement of the VES. The VES is a lobby group that campaigns on behalf of the mentally competent, hence the expression ‘voluntary euthanasia’.
When the Lord Chancellor’s Department submits its response to the various submissions received it is important that three specific issues are addressed: –
1. What meetings have been held between ministers and officials and representatives of the VES, and when?
2. How does the Government reconcile their co-operation with the VES with their stated opposition to the legalisation of euthanasia? With the vast array of lawyers and civil servants at the Government’s disposal there is certainly no need for the Government to consult the VES, or others, on any legal matters.
3. Why did the Lord Chancellor’s Department not seek the assistance of organisations opposed to all forms of euthanasia when preparing the Consultation document?
I am extremely concerned that this whole consultation process has been fatally undermined at the outset.
The Consultation Paper assumes throughout that food and fluid, howsoever delivered to patients, is medical treatment that can be withdrawn from patients if to do so would be in the patients’ best interests (see, for example, p. 55, p. 76, p. 110). The reality is that food and fluids are basic care that should never be withdrawn from patients who are not dying.
The withdrawal of artificially delivered food and fluids from persons in a persistent vegetative state constitutes non-voluntary euthanasia by omission. This particular form of euthanasia has been legalised by stealth through the courts and the Consultation Paper does nothing to correct this. In fact, if the leaflets and guidance set out in the document are approved for public use, this will further enshrine the legalisation of non-voluntary euthanasia in England and Wales. In such circumstances the advisory leaflets should contain clear information on the effects of dehydration and the fact that basic care is deemed not to include the provision of food and fluids.
Parliament has never been given a proper opportunity to debate this vital issue. Before the leaflets and guidance enter the public domain it is crucial that Parliament is given sufficient opportunity to debate the withdrawal of food and fluids, howsoever delivered, from patients who are not dying.
Finally, the advice given on p. 110 of the Consultation Paper is unclear. As the paper correctly advises at various points, the Court of Protection’s jurisdiction is limited at present to the financial affairs of the mentally incapacitated. It has no jurisdiction over health care matters.
At p. 110 the reader is correctly advised that disputes over a mentally incapacitated person’s financial affairs should be referred to the ‘Court of Protection’. However, the leaflet then goes on to advise that “If the dispute is about a serious matter affecting your basic freedoms, anyone involved can ask the court to intervene and decide what is in your best interests. For example, the court can be asked to decide: Whether you should have certain types of irreversible medical treatment such as sterilisation or the withdrawal of artificial nutrition and hydration from persons in a persistent vegetative state.”
The advice is unclear as to which ‘court’ should be petitioned. At the moment, it is the High Court. This should be made clear in the leaflet. The fact that it has not, taken together with the Government’s support for a reformed Court of Protection that would assume jurisdiction over health care matters as set out in the 1999 Consultation Paper, ‘Making Decisions’, leads me to suspect that the ambiguity is deliberate.
It is very important that the Government disclose whether it has any plans to reform the Court of Protection so as to enable it to resolve disputes relating to health care for the mentally incapacitated, perhaps with the result that the views of families, or an advance directive stating that food and fluids should never be withdrawn, are overridden.
Please do not hesitate to contact me if you require any clarification on the issues raised.
Yours sincerely
Lord Alton of Liverpool