The Mental Incapacity Bill


By David Alton

Universe Column for August 17th 2003

In recent months my parliamentary colleague Baroness Finlay of Llandaff has emerged as one of the foremost voices protecting the elderly, the disabled and the terminally ill from proposals to legalise euthanasia. Given her own background as a young professor specialising in palliative care Ilora Finlay’s voice has been authoritative and persuasive.  Over the months ahead of us – and as the battles over euthanasia show no sign of abating – her voice will be even more crucial.

The Government has recently published its long-awaited draft Mental Incapacity Bill: and this is where the next major battle will occur. Those of us who are opposed to the legalisation of euthanasia have always been concerned that mental incapacity legislation could be the Trojan horse through which pro-euthanasia policies are introduced.

While we accept the need to reform our mental incapacity laws, the warm welcome given to the draft Bill by the Voluntary Euthanasia Society demonstrates that our concerns are well-founded. Serious dangers lurk in the draft Mental Incapacity Bill. It would be a great shame if the Government allows the pro-euthanasia lobby to highjack much needed legislation in the area of mental capacity.

There are two immediate questions of specific concern – advance decisions and lasting powers of attorney.

The draft Bill seeks to codify and clarify the current law on advance decisions to refuse medical treatment. According to the draft Bill, an “advance decision” will become legally binding regardless of how old it is or how ill-informed the make or how hypothetical the condition.

This goes beyond the current legal position on advanced decisions. For example, nowhere is it specified that the advance decision must be in writing. “Broad terms” and “non-scientific” language is sufficient to indicate a decision.

Unless the validity of these advance decisions is circumscribed vulnerable patients will be put at risk of neglect and death. This issue must be confronted during consultation on the draft Bill so as to ensure that the rights of the mentally incapacitated are fully protected.

The draft Bill also seeks to enshrine in law “lasting powers of attorney”. Previously known as continuing powers of attorney these would allow an individual (the donor) to confer on another individual or individuals (donees) authority to make decisions on the donor’s behalf on issues concerning the donor’s personal welfare, including his medical care. The lasting power of attorney would become effective upon the donor’s mental incapacity.

If lasting powers of attorney are not to increase the vulnerability of mentally incapable patients, the donee’s authority would need to be carefully monitored and subject to scrutiny. Safeguards are not enough.

There is however one positive aspect to the provisions on lasting powers of attorney. The donee can demand the transfer of the donor’s care to another doctor. This would seriously help donees who seek nutrition for the donor when he or she is not getting it from their current doctor.

In recent weeks I have been involved in the Lords in debates on Baroness Knight’s Patients’ Protection Bill. This Bill seeks to prohibit the withdrawal or withholding of food and fluids from non-dying patients. In the course of our debates concerns have been expressed about the nutritional needs of patients, particularly the elderly, not being met in our hospitals.

I believe that the Joint Committee comprising members of the Lords and Commons which has been appointed to consider the draft Bill would do well to read our debates on the Patients’ Protection Bill prior to reaching any conclusions. We must not allow euthanasia to be smuggled in under the guise of mental incapacity legislation – and we must hope that peers like Baroness Finlay will guard against this happening.