Mental Capacity Bill and Euthanasia


Universe Column for July 4th 2004

by David Alton

The Government have now presented their Mental Capacity Bill to Parliament. In the light of considerable scaremongering about the Government’s intentions it is worth pointing out several things:

* The Pro-Life parliamentarians, working with Archbishop Peter Smith, have been successful in having Clause 58 included on the face of the Bill. This specifically prohibits assisted suicide by act or omission. Lord Filkin, the Government Minister responsible for the Bill – who has engaged with courtesy, thoughtfulness and decency –  has put  their position in black and white.

It is, therefore, completely untrue to say that this Bill legalises euthanasia. Indeed, it will improve our prospects of defeating the Joffe Private Member’s Bill (which does, indeed seek to legalise assisted suicide).  Parliament can hardly enact two Bills with contradictory objectives.

* The Mental Capacity Bill does not – categorically, does not – enshrine the Bland judgement. It doesn’t change the current situation either way. Lord Filkin has put in writing to us these words: “  The Mental Capacity Bill does not make any provision about patients in the permanent vegetative state and so does not directly affect the Bland judgment.”

* We asked the question

“Will it be possible under the Bill for a carer, attorney or deputy to deny treatment precisely so as to cause the patient’s death?” “ The reply doesn’t try to hedge any best: “No.  A carer will have no authority to deny treatment.” Nor will a carer or any body else be able to stop a doctor from treating a patient:

“… in any event, a doctor may safely treat and provide any life-sustaining treatment while seeking a decision from the court if he is in doubt about the stance taken by an attorney or deputy (clause 6(6)).”

* We raised the worry that advanced directives could be used to stop patients who have attempted suicide from being treated:

“Will a suicidally motivated advance decision be valid and applicable?” and got the unequivocal reply: “A note expressing a wish to die would not qualify as an advance decision to refuse treatment.     An advance decision has to be made with capacity.  Suicidal intention and despair obviously affect capacity, because they affect a person’s ability to understand, use and weigh information about the nature of depression and the available treatments.”

* We explored this further:

“Would section 58 (the new clause)  preclude a doctor from assisting in the patient’s suicide? The Minister told us “Yes. The Bill itself is clear that a doctor cannot assist in a patient’s suicide.  If a person with capacity consents to another person assisting their suicide, the person who assists is still liable to be prosecuted under the Suicide Act. Clause 58 emphasises this.”

* It’s worth adding that supporters of euthanasia have attacked the Mental Capacity Bill as “lacking teeth” and The Independent (which is pro-euthanasia), used a recent editorial to  attack the Government for failing to legalise euthanasia in the Mental Capacity Bill. It’s always useful to know what your opponents think.

* But, worryingly, while people tilt at imaginary windmills – or, to mix the metaphor, fight the wrong battle in the last ditch – we could end up with a Select Committee recommendation in favour of euthanasia. The Jofee Bill Select Committee meets next month and has received few representations. Its recommendations will be pivotal.

Opponents of euthanasia could write politely to the Bill’s supporters on the Select Committee – such as Lord Jofee, Baroness Jay of Paddington, Lord Taverne and Baroness Thomas of Walliswood. Among the arguments against the Bill are that:

  • The Bill is opposed by organizations representing the interests of those whom it would affect the most, the disabled, the elderly, the terminally ill and the medical profession.
  • Organisations opposed to the Bill include the Disability Rights Commission, Disability Awareness in Action, Help the Aged, Age Concern, the British Medical Profession, the Royal College of Nursing, the Association for Palliative Medicine and the National Council for Hospice and Specialist Palliative Care Services.
  • In the Netherlands , where euthanasia has been legalized, only just over half of euthanasia cases are reported to the proper authorities making nonsense of the claim that legalizing euthanasia will ensure that the practice is properly regulated.

Lord Joffe and the other members of the House of Lords can be written to at the House of Lords, London , SW1A 0PW . Further information can be obtained from Right To Life and foleym@parliament.uk