ANALYSIS

The Mental Capacity Bill – gateway to euthanasia?

By Dr Adrian Treloar

The danger of passive euthanasia moved a step closer recently with the Government’s enthusiastic endorsement, in the Queen’s Speech, of its nearly completed Mental Capacity Bill.

The Bill - which has now only to pass its Third Reading in the House of Commons and be approved by the House of Lords - has been strongly criticised by Christian lawyers, doctors and pro-life campaigners, who have warned that, in its present form, it allows killing by omission of the mentally incapacitated.

As it stands the Bill requires doctors to abide by a patient’s advance decision to refuse treatment. Currently doctors can reject these advance decisions or ‘living wills’ if they feel they would not be in the patient’s ‘best interests’.

The legalisation of a passive form of euthanasia is not, of course, the stated aim of the Bill. In theory it seeks to clarify how all decisions are to be made when someone lacks, or may lack “mental capacity”. This includes healthcare and personal welfare decisions, what is meant by “capacity” and the establishment of criteria for assessing what is in the “best interests” of someone who lacks “capacity”. It also seeks to introduce the concept of a “general authority to act” that clarifies in statute the circumstances in which decisions can be taken on behalf of others without the need for any formal authority. It also gives “lasting powers of attorney” to family members or friends.

In theory all this sounds very sensible and helpful, but, while some sections of the proposed Bill are useful others are, I believe, a step towards legalising euthanasia. For example, the Bill states that serious medical treatment may be withdrawn for the “best interests” of the patient. It is very clear that this means the Bill will allow the removal of food and fluids from patients in persistent vegetative state (PVS), as well as stroke patients and new-born disabled babies. It will also enable sterilisation of those with learning disabilities.

The Government states that these matters will be subject to a code of practice and that recourse to the courts will continue for the time being in cases where this currently happens. However, codes change with time and the Bill will therefore give statutory support to ending the lives of stroke patients by dehydration as well as allowing, without further legislation, the ending of life for PVS patients.

Those in control of lasting powers of attorney for mentally incapacitated patients will be able to require such ending of life by refusing serious medical treatment (including food and fluid by tube and possibly use of oral syringe feeding). Where the Court of Protection appoints a consultee, a government appointee will acquire the ability to stop treatments in this way. Therefore the Bill will go a long way to enabling euthanasia by neglect by a wide group of individuals.

“Best interests” remains poorly defined. Indeed the Bill is deeply flawed in its approach to best interests, which are described solely in terms of the patient’s actual or hypothetical desires. The Bill nowhere refers to life and health in listing the best interests of the patient. As a doctor I believe there really should be a consideration of good clinical care in “best interests”. To omit this from the decision-making equation is, in my opinion, unacceptable. Yet under proposed legislation it will not matter.

Another worry is that “serious medical treatment” is not defined. It will certainly include simply administered food and fluid by tube, but may also include other oral nutrition. Therefore the range of treatments that can be withheld or withdrawn is likely to be wide. The range of disabilities and illnesses will also be wide. This risks decisions being made on the basis of “worth”, “personhood” or “utility” of individual patients. Disabled and elderly patients are at deep risk in all such quality arguments.

It is, of course, absolutely right that doctors must limit medical care where it will not help or work. However, this Bill puts into statute the ability to require that serious medical treatment (including food and fluid administered by tube) be withheld, with the knowledge that life might soon end as a result. The ethics of this must be questioned. If doctors are legally required to end life by such means it will fracture the vision of each of our patients as uniquely deserving of respect, love and care. That is precisely what happened in Nazi Germany. The first victims were the disabled and elderly.

However, the Bill is not all bad news. The validity of decisions made in advance by patients on their future medical treatment in the event they could lose mental capacity, will be limited under the Bill. They will have to be specific, relate to conditions that were anticipated, and the patient must not have done anything inconsistent with the decision since it was made. Furthermore, when the specified situation arises, if there are reasonable grounds to doubt that the patient did not anticipate circumstances that would have made him think differently, the decision can be questioned.

However, apart from these limitations, advance decisions or “living wills” will be given statutory power. As currently drafted, the Bill compels doctors to abide by advance directives, even if refusing treatment would cause the patient pain, suffering and death. Currently doctors can decide not to follow advance directives because they are not in the patient’s best interests. Statutory power will make advance decisions therefore dangerous. Whilst welcomed as advisory by Christian doctors, they are generally opposed if binding because of the damage that may occur to vulnerable patients who may have made decisions about treatment before they were fully apprised of the details of their disease or its likely outcome.

A good aspect of the debate on advance decisions is that doctors have gained a much clearer description of the limits to their authority. Faced with an advance decision, the bill will give doctors considerable power to continue to cherish the life of the patient and provide appropriate care and comfort. There is a range of opportunities to question the validity of directives when they appear to harm the patient. This is a huge improvement on previous loose definitions. However, it is still not clear whether a suicide note would constitute a valid decision, requiring doctors to allow those who harm themselves to die.

Lasting powers of attorney are partly good, but also dangerous. They give another individual statutory authority to consent to treatment for those without capacity who refuse or cannot consent to care, including those who resist. This should improve care, as currently incapacitated patients who resist care may not be treated. Enduring powers of attorney already work well for money matters, and may help medical care. However there are cases of fraud in money matters, and the likelihood of an appointed attorney not acting for the patient’s best medical interests must concern us. It is not clear how those who oppose good care for patients will be dealt with.

The Abortion Act 1967 resulted in a large proportion of Christian doctors being blocked from Obstetrics and Gynaecology, as those with a conscientious objection found it harder to ascend the career ladder. A few hung on, believing that doing some abortions enabled them to influence and save others. The same sort of thing will doubtless happen in the care of the sick and vulnerable if this Bill is passed. Specialities such as Geriatric Medicine, Palliative Care, Old Age Psychiatry and General Practice currently occupy many Christian doctors. These may become “no-go” areas. We should be very concerned about the current Bill. It is a long way from being benign, and will probably turn out to have been the point at which euthanasia became legally established in this country.

• Dr Adrian Treloar is a Consultant and Senior Lecturer in Old Age Psychiatry in London

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