Right To Life Background notes on the Government paper
'Who Decides?'

b. Assisted food and fluid (tubal feeding) was first legally claimed to be 'treatment' in the case of Airedale NHS Trust v Mr Anthony Bland [1993], commonly known as the 'Bland Judgement'. The Court accepted this definition; as a result, tubal feeding was withdrawn from Mr Bland, a PVS patient who was not dying. And his death was brought about by dehydration and starvation.

c. Until then, tubal feeding - like all other forms of feeding - was always regarded as basic care. Everybody is entitled to receive food and fluids as a basic human right. There was nothing artificial about Mr Bland's nutrition and hydration. They were merely assisted, as they are with, for example, babies and young children.

d. It was clear that the only reason for tubal feeding to be defined as 'treatment' was to enable doctors to withdraw it from patients whose lives they considered should be ended.

The Bland case created tremendous public concern and the Government promised that they would not enshrine the Bland Judgement in statute law.

e. In 'Making Decisions', however, the Government uses the Bland Judgement (the very case it promised not to enshrine in statute law) as the basis for accepted medical practice.

The document would consolidate - even promote - the practice of medical killing in a wide range of cases.

f. 'Making Decisions' refers to the withdrawal of assisted food and fluid from PVS patients and those in "similar conditions". The term is not adequately defined in the document and could relate to an ever-widening section of patients - those who have had severe strokes, new-born disabled babies, and people suffering from conditions such as Alzheimer's Disease or Huntington's Chorea.

In reality, there can be no difference between selecting 'PVS patients' and those who are profoundly disabled by other conditions.


2. THE COURT OF PROTECTION
a. Whereas most people accept that the Government's proposed new 'Court of Protection' could certainly help in relation to financial (and other) arrangements for mentally incapacitated people, there is little doubt that one of its main functions would be to facilitate medical killing.

Nobody opposed to medical killing in principle could ever adjudicate in such a court: no Orthodox Jew, Muslim, Roman Catholic or other traditional Christian could fulfil the requirement of condemning a patient to die by deliberately bringing about dehydration and starvation. (This is not to be confused with withdrawing assisted food and fluid when it is too futile or too burdensome for the patient - though that was most definitely not the case in the tragic Bland case. Neither his assisted nutrition nor his assisted hydration were too futile or too burdensome [for him] to maintain his life.)

b. Nearly all such cases would be heard in private as is the usual custom. This would make it almost impossible to carry out inquiries into the deaths of patients over which the Court had adjudicated - even where those making the application were known by others to have a self-interest.

According to the document, this is to protect the patient and the patient's 'privacy'. In reality, however, there would be no possibility of 'justice (or, for that matter, injustice) being seen to be done'. 'Privacy' could serve to protect those applying to the courts - and the court itself - rather than the patients whose fate lies in their power.

c. If The Court of Protection ever rules that a mentally incapicitated person may be intentionally killed by doctors, it will for the first time have created the absurd legal position of 'protecting' that person's supposed interests by actually harming that person and procuring their death.

d. Furthermore, a court within a country where capital punishment is illegal, will effectively have pronounced the death sentence on and signed the death warrant for a person innocent of any wrong-doing.

e. Moreover, if it is right to deliberately end someone's life - because allowing them to live would prolong their suffering - it follows that such a patient's life should be ended with the utmost dispatch. Once intentional killing through the withdrawal of assisted food and fluid [killing by omission] is legalised, it will be impossible to argue logically against the introduction of killing by lethal injection at the earliest opportunity.


3. LEGALLY BINDING ADVANCE DIRECTIVES
a. The Government has constantly stated that it supports the Report of the House of Lords Select Committee on Medical Ethics. This report opposed giving statute force to advance directives.

b. In 'Making Decisions', however, the Government claims that advance directives are already legally binding according to Common Law, in support of which they cite three cases which are highly questionable authority: Airedale NHS Trust v Mr Anthony Bland; Re T; and Re C.

c. The application of the Airedale NHS Trust to end the life of Mr Anthony Bland had nothing to do with advance directives.

The Court admitted that at no time had Mr Bland given "any indication of his wishes". It was simply felt that he would not have wished to continue living as a PVS patient.

There was no way of confirming what he would have wished - which is a clear indication of the dangers of citing such a case as the basis for a law making advance directives legally binding.

The application to the court was that assisted food and fluid was a form of treatment which could be withdrawn.

d. Re T related to the refusal of a blood transfusion by a Jehovah's Witness on religious grounds. The aim of refusal had nothing to do with deliberately ending a patient's life: neither did it involve a general refusal of treatment made in advance of the time when the patient was subject to the relevant condition.

e. In Re C it was decided by the court that the patient was competent to make his own decision.

He was fully aware of the specific condition for which he was refusing treatment (amputation of a gangrenous leg).

While the Court ruling was binding on the doctors for the future, the patient could, nonetheless, change his mind. Furthermore, he knew the possible consequences of refusing treatment.

This, like Re T, was not a case about general refusals of treatment, made in advance of the time when the patient was subject to the actual condition for which he refused treatment.

f. It is worth asking why the government should persistently:
i. claim to support the House of Lords Select Committee on Medical Ethics which opposed giving statute force to advance directives; and
ii. state that it has "no plans to enshrine (the Bland) judgement in statute law" (Hansard. 2.11.1999, col 105) yet introduce a Report, 'Making Decisions', which claims that, de facto, advance directives are already legally binding; and citing as justification for this, Bland, the very judgement they promised not to enshrine in statute law.

g. Furthermore, 'Making Decisions' would enable Proxy Decision Makers to enforce advance directives - which may be written or oral - without even applying to the Court of Protection.

In more recent years, the euthanasia lobby has constantly promoted the idea that 'best interests' should be interpreted by a third party as the 'wishes' and 'feelings' of the patient. The latter concept has been adopted in 'Making Decisions'.

a. An advance directive would not necessarily have to be written. The "statutory guidance" put forward in 'Making Decisions' suggests that court assessments would include "the views of other people whom it is appropriate and practical to consult about the person's wishes and feelings...."

Much was made in the Bland Judgement of what people thought Mr Bland would have wanted in the circumstances, although it was admitted that at no time had he ever discussed serious illness or disability (see above, 3c).

c. Proxy Decision Makers (with Continuing Powers of Attorney) would be appointed by the patient in advance.

However, in the absence of a Proxy Decision Maker, 'Making Decisions' gives the Court of Protection the Right to appoint a manager.

As the new Court of Protection is pre-disposed to the concept of medical killing, it is likely that a 'manager' appointed by them would be in sympathy with their views; in his position he would be able to cause the patient harm by refusing treatment - for example, following a stroke - because he thought treatment was not worthwhile.

d. The Court of Protection also has the right to dismiss a Proxy Decision Maker if it is felt that s/he is not acting in the patient's "best interests".

While this could be of help in protecting a patient financially, it might also mean that a person opposed to medical killing would be dismissed because of failing to call for the withdrawal of tubal feeding for a patient who was not dying if the court decided that withdrawal is what the patient might have wished.

What would be the position of a Proxy Decision Maker who refused to call for the withdrawal of assisted food and fluid or other treatment? Has s/he any right of appeal to other courts?

e. In both 'Who Decides?' and in 'Making Decisions' much has been made of the claim that neither advance directives nor proxy Decision Makers could require a doctor to bring about the death of a patient by means which are unlawful.

This assurance, however, provides no real protection for the patients, as can be seen by the Bland judgement.

This judgement changed the law overnight by defining assisted food and fluid as 'treatment' which could be withdrawn, thus deliberately causing death by dehydration and starvation.

The Government has pledged not to enshrine the Bland Judgement in statute law. Nonetheless, it now puts forward the recommendation in 'Making Decisions' that a Proxy Decision Maker may require the withdrawal of tubal feeding (without even reference to the Court of Protection) to cause the death of the person for whom s/he is acting, albeit that the authority for such non-treatment must be 'specifically given' in the Continuing Power of Attorney made in advance by the patient.

f. The recommendations of 'Making Decisions' regarding Proxy Decision Makers and advance directives ignore the conclusions of the House of Lords Select Committee on Medical Ethics.

This Committee stated that although advance directives could be helpful in the treatment of patients, they opposed the concept of giving them greater legal force, stating that it would risk "depriving patients of the benefit of the doctor's professional expertise and of new treatment and procedures which may have become available since the advance directive was signed".