This article appears in the February 2004 edition of the Catholic Medical Quarterly
You may have Missed - Catholic Times 11th January 2004
Draft Mental Incapacity Bill - what does it really propose?
The Government is seeking to reassure us that the Mental Incapacity Bill does not legalise euthanasia. So why are so many of us so convinced that this bill will promote euthanasia? Although there are many good aspects to the bill, particularly around the financial and social care of people with incapacity, the dangers lie in the changes to medical practice.
Medical practice has always needed consent, with the obvious corollary that treatment can be refused. It therefore seems reasonable to allow a competent patient to make a decision which is binding on doctors should they later become incompetent. It also seems reasonable to allow those who best know the patient, to make decisions on their behalf when they can no longer decide for themselves. These arguments are the principles justifying this bill. But this superficial analysis ignores the limits of such decisions and what can morally be refused.
The arguments for euthanasia are based on personal autonomy ('it is my right to choose'). The mental incapacity bill promotes personal autonomy by using the term 'best interests'. The legal meaning of this term is not defined other than by using the phrase 'regard must be had to ...... his past and present wishes and feelings'. But those seeking euthanasia say it is their wish to die and frequently say 'I am better off dead'. As currently worded in this bill, death could be regarded as in a person's 'best interests'. Medical decisions need to be based on 'medical best interests.' These may be defined as 'the preservation of life, the prevention of disability and the relief of pain and distress.' Leaving the bill with undefined 'best interests' will allow for virtually any interpretation. For example, the relatives of a demented patient (who would inherit money if she died) could, using the argument that she never wished to live if she had dementia, refuse all treatment on her behalf and so speed her death and their inheritance.
The Catholic Church has defined euthanasia as "an act or omission, which of itself and by intent ends life for merciful reasons." The government refuses to include omission in the definition of euthanasia. From a moral perspective both intent and omission are important. There are many occasions when we have a duty to do something, hence at Mass we regularly confess 'for what I have done and what I have failed to do.' The moral problem arises when considering withdrawing some forms of treatment and care.
Linked to personal autonomy, right to die societies campaign to make advance directives legally binding, and their examples of model advance directives invariably include the withdrawal of food and fluids. A quotation from an international 'pro-choice' conference will help understand why. "If we can get people to accept the removal of all treatment and care - especially the removal of food and fluids - they will see what a painful way this is to die and then, in the patient's best interest, they will accept the lethal injection." The logic of this argument was recognised by two of the Law Lords, even though they authorised the withdrawal of food and fluids from Tony Bland in 1993. Lord Browne-Wilkinson said:- "Finally, the conclusion I have reached will appear to some to be almost irrational. How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection .......? I find it difficult to find a moral answer to that question." Lord Goff said: "It is true that the drawing of this distinction [between act and omission] may lead to a charge of hypocrisy, because it can be asked why, if the doctor by discontinuing treatment, is entitled in consequence to let the patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he die."
Already some doctors are withdrawing food and fluids from non-dying patients and this bill will widen the scope considerably and at a stroke will achieve two of the aims of the voluntary euthanasia society and be a significant step in changing the culture of accepting euthanasia by direct lethal injection.
The Bill will make advance directives legally binding if they specify the circumstances and treatments refused. Therefore, if a person takes an overdose and leaves a suicide note detailing the drugs taken together with an advance directive refusing the appropriate treatment, then doctors can only stand by and watch. It may be that the person has not taken a fatal overdose, but the amount of drug taken is sufficient to cause significant organ damage resulting in permanent disability. It has been claimed that following the letter of the Data Protection Act allowed Ian Huntley to get his job with children, and stopped British Gas reporting that they had cut of the gas supply to an elderly couple. It is certain that making advance directives legally binding will result in similar scenarios where, for fear of breaking the law with its subsequent penalties, the medical profession will withhold treatment against all common sense.
The Scrutiny committee, looking at this bill, misinterpreted the evidence and reported that 'For several faith organisations and the Guild of Catholic Doctors the omission of treatment that might prolong life even if for a short period of time was considered unacceptable unless such treatment was likely in itself to result in undue suffering.' This is not, and never has been, the position of the Guild of Catholic Doctors. The Guild of Catholic Doctors has never supported the vitalist position that life must be preserved at all costs. It has argued that there is no need to provide futile treatment; and it is contrary to good medical care to give useless treatment. We also argue that it is bad medicine to prolong the dying process. It is the doctors' duty, where possible, to minimise suffering.
The major difficulty concerns the withdrawal of food and fluids. We argue that the insertion of a feeding tube could be regarded as medical treatment, and the risks and benefits of such insertion need to be considered before deciding whether it is appropriate. However, we argue that once a tube is in place, then administration of food and fluids through that tube is basic care. The tube, like a spoon or feeding bottle, is an aid to transfer fluid into the patient. It is a sad reality that today doctors are withdrawing food and fluids, not because its administration is burdensome but because they feel the patient would be better off dead, and without fluids we will certainly die.
This government is committed to introducing this bill, and we need to argue forcibly for changes to improve the bill. In summary these include:-
Clearly defining 'best interests' or better to add and define 'medical (or clinical) best interests.'
Define euthanasia, including omission and intention in the definition of euthanasia.
Make advance directives advisory, rather than legally binding.
Define 'basic care' which must always be given.
Exclude withdrawal of food and fluids as a mechanism to bring about a patient's death. Inclusion of Dame Jill Knight's bill making it illegal to withdraw food and fluids with the intention of causing a patient's death would alleviate much concern about this bill.
In 1967, many did not foresee the full consequences of the abortion act, and stayed silent. History must not be repeated. It is vital that we examine this issue deeply. Those in favour of euthanasia have been campaigning for years using a stepwise approach with what appear to be superficially reasonable arguments. We must avoid being hoodwinked by them.
Dr Michael Jarmulowicz
Chairman, Joint Ethico-Medical Committee of the Guild of Catholic Doctors and
Catholic Union of Great Britain.