The House of Commons passed the Mental Capacity Bill without further amendment on 5 April. The news was lost as headlines were dominated by the call of the election, the royal weeding and the death of Pope John Paul II. The bill received royal assent the same week. It is not yet certain when it will become law.
In view of the shortage of time and a three-line government whip only two amendments were even debated and both of these were lost.
The bill had been amended earlier in the proceedings to ensure that court appointed deputies could not make life and death decisions and that advance refusals for food and fluids had to be made in writing. These were big improvements.
However the final bill still leaves several loopholes:
- The words 'motivated by a desire to bring about a person's death' have been retained. We would have preferred 'with the intention of' (or 'with the purpose of') 'bringing about a person's death'. There is a potential loophole in that people may withdraw fluids with the intention of killing but not with anything to gain from it personally.
- Clause 58 (now 61) states that nothing in the bill affects the law on euthanasia. The government have admitted however that this does not cover advance refusals, which may still be suicidally motivated and are not subject to the 'best interests' principle. So advance refusals remain legally binding even if they are not in a person's 'best interests'.
- Those granted power of attorney can still make life and death decisions on behalf of a patient without an advance refusal. So, for example, the Schiavo case scenario remains a possibility where a relative with personal and financial interests may deny it and make a decision to remove food and fluids from a non-dying patient on the grounds that it is 'what they would have wanted'.
The following previous worrying elements remain an integral part of the bill:
- Legally binding advance refusals
- 'Best interests' to include things other than preservation of life, restoring health and improving symptoms (ie. It could be argued that it is in a patient's best interests to die – see Len Doyal's BMJ editorial - on the ground that death constitutes a benefit)
- Food and fluids by tube as serious medical treatment
The bottom line is that there are still loopholes whereby non-dying mentally incapacitated patients can be starved and dehydrated to death in their 'best interests' either on the say so of those given power of attorney, or according to a legally binding advance directive.
See our past press releases on the bill on the Schiavo case the the MCB and the drafting of the MCB.
The final text of the bill should be available soon on Her Majesty's Stationery Office website. The principles regarding day to day running of the bill will be in the accompanying 'code of practice', which is at this point not in final draft. This can be amended in the future by resolution of Parliament.
Be careful what you sign!
