This article appeaned in the May 1998 edition of the CMQ

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Euthanasia and the Government's proposals on Mental Incapacity


The Lord Chancellor's Department issued, in December 1997, a Consultation Paper (A Green Paper) on the question of making decision on behalf of mentally incapacitated adults. It is called Who Decides? lt approves the work of the Law Commission in its report no. 231 (Lawcom. 231) on Mental Incapacity and makes specific reference throughout to the Law Commission's draft bill on Mental Incapacity.

There are no other legislative proposals that the Government are considering and it is quite clear that it is the Law Commission's draft bill that the Government are considering as regards any future plans for legislation. The bill's full text is set out at the back of the Law Commission's report no. 231 which is available from the Law Commission itself (37-38 John Street, Theobalds Road, London WCIN 2BQ) or from HMSO.

Below is a detailed critique of that draft bill.



Clause 2 - Definition of Incapacity

Clause 3 - The "Best Interests" criteria

The criteria include:

Clause 9 - Advance Refusals of Treatment (ARTs), (including "Living Wills")

What it means:

Clause 10 - Non-therapeutic measures

Clause 11- Research procedures on the disabled

Clause 16 - Continuing Powers of Attorney

Chapter IV- Court-appointed Managers


  1. Doctors may he criminalised for insisting on good clinical practice (e.g. under "basic care" ARTs).
  2. Managers and Attorneys will he able to dictate clinical decisions, even if medically unqualified.
  3. Courts may become clogged by applications to avoid Advance Statements or Attorneys' orders.
  4. Doctors could effectively he compelled, on pain of job loss, to take innocent life.
  5. Patients may lose confidence and trust In their doctors and nurses.
  6. Medical and ethical standards are in danger of being fatally compromised.
  7. Doctors could he compelled to accept intentional killing as part of their practice.



  1. The current law, on the other hand, tends to emphasise your continuing, contemporaneous consent as primary. See the cases of Bolam v Friern HMC [19571 2 All ER 118, Re:F [19891 2 All ER 545, Re:T[199311 Fam95, Re:C[199411 WLR290, Re: S [1994] WLR 601. The BMA Code on Advance Statements seems to consider "living wills" binding under existing law as do some lawyers (e.g Alan Levy QC who cites Re:T). The contrary position was put to Mrs Justice Hale (who headed the committee producing Lawcom 231) at one of the BMA's conferences on Mental incapacity. She did not feel able confidently to assert that they are binding on the basis of existing law. Moreover, she admitted that Airedale NHS Trust v Bland[1993]AC 885 HL was no authority for legally binding "living wills" despite the fact that some have cited it as such. Other lawyers (e.g Gerard Wright QC) do not consider them binding under present law. The Official Solicitor has only been prepared to say that "the patient's previously expressed views, if any, will always be an important component in the decisions of the doctors and the court..." (Practice Note on Vegetative State [19661 2 FLR 375.377). That is considerably less than saying that they bind doctors.
  2. Patients cannot currently require a doctor to assist them to die; and this must include requiring them to withdraw food and fluids so as to cause death. This could he aiding, abetting, counselling or procuring a suicide, which is a crime under the Suicide Act 1961.
  3. Hunger and thirst are not diseases. Stopping food and fluids, even delivered by tube, is not the same as stopping a ventilator. A baby's bottle is no different in effect to a feeding tube and, if removed, will cause the baby's death. There may he a difficult decision for a doctor to make when deciding to fit a feeding tube but, once fitted, its removal will cause death to the patient through hunger and thirst.
  4. This appears to be an attempt to reproduce the Bland judgement in the bill. It is now admitted that the decision in Bland was based upon incomplete medical evidence. Moreover, this clause goes beyond Bland. It allows the Secretary of State, a Manager or a Continuing Attorney powers to decide. It also fails to define "no activity in the cerebral cortex". This could mean something very much less than PVS (the Persistent Vegetative State). It need not mean "brain stem death" or a flat EEG. A PVS patient, for example, is not brain stem dead.
  5. The judgement given by the House of Lords in Bland was complicated by incomplete medical evidence. For example, a postmortem carried out on Tony Bland revealed that his brain was intact and was clearly not the "watery mass" which it had been described as being in the evidence. The Law Lords ruled that food and fluids delivered through a tube are 'treatment', at least in the case of a PVS patient, and can be withdrawn even if death results. Hunger and thirst are not diseases so, if food and water are deliberately withdrawn and the patient dies as result, such a withdrawal is a form of passive involuntary intentional killing. It also means that the patient dies a particularly unpleasant death. Once this practice becomes widespread it will not be surprising if relatives and campaigners begin to demand that the patient be given a lethal injection rather than be forced to die of thirst. That, of course, is active involuntary intentional killing. At least one academic has already called for the introduction of "active" measures for this reason.
  6. Lawcom 231 discusses this openly at para 6.24, admitting that "elective ventilation" currently constitutes unlawful battery. They are unable to see an ethical objection but they say at para 6.26 that they did not invite specific views on this topic (ethical objections might have arisen if they had - a good example of the commission attempting to run ahead of public opinion). At para 6.27, they go one stage further and assert that it would be impractical for decisions about "elective ventilation" to require prior court approval. Presumably they foresee the decision being taken by doctors, Attorneys or Managers. One can easily foresee the pressures that doctors will come under to perform such procedures given the increasing twin demands for both hospital bed spaces and organs.


James Bogie is a Barrister of the Middle Temple specialising in medico-legal issues.