The Mental Incapacity Bill not only paves the way for euthanasia, but invites wholesale abuse and homicide, writes Jacqueline Laing

On 19 October 2004, when the Mental Capacity Bill was at its crucial committee stage, the Law Society issued a statement of 'strong support', claiming that it empowers patients and in no way introduces euthanasia.



The case for the opposition deserves a hearing. Critics of the legislation argue that the Bill threatens the incapacitated by granting a raft of new third parties power to require that health professionals withhold 'treatment', which, after the controversial decision in Airedale NHS Trust v Bland [1993] AC 789, includes food and fluids delivered both by tube and, in certain cases, by spoon.


The Bill further endangers the vulnerable, first, by allowing non-therapeutic research on the non-consenting mentally incapacitated, and secondly, by permitting new agents power to undertake on people with learning disabilities certain questionable procedures currently authorised by the High Court, such as non-voluntary sterilisation.



Various groups - religious, anti-euthanasiast and anti-eugenicist - oppose this bill, which radically extends controversial common law. Part of the reason that the Bland decision, for example, continues to attract criticism is that it involved the removal of food and fluids from a severely disabled man who was not dying, precisely with the intention of bringing about his death on the grounds that the patient himself was 'grotesquely alive' and had 'no best interests of any kind'.



The persistent concern of objectors to the decision is that the reasoning of certain judges was not framed in terms of the burden or futility of the treatment involved but of the burden and futility of the patient's life itself, an explicitly and unfairly discriminatory judgement about severe disability.


The Bill does not merely contradict the Hippocratic tradition in medicine and the old common law that regarded intentional killing by omission as murder. It is also incompatible with the Nuremberg Code and the first Declaration of Helsinki (which placed a complete ban on non-therapeutic research on the non-consenting), as well as the European Convention on Human Rights. Recent decisions of the European Court of Human Rights suggest that the Bill provides insufficient safeguards, whether procedural or substantive, against degrading treatment by dehydration and non-therapeutic procedures and intentional homicide. By setting up this defective scheme for mentally incapacitated patients, the Bill necessarily discriminates against the disabled in contravention of article 14, thereby failing to respect the intrinsic dignity of every patient, however disabled.



Government and Law Society assurances that clause 58 of the Bill leaves the homicide law unchanged should afford little consolation. Given that Bland makes permissible the intentional killing of the non-dying disabled on 'quality of life' grounds, there is every reason to believe that the Bill invites wholesale abuse and homicide.



By extending to attorneys, deputies and parties claiming to know the wishes of the patient, the power to order dehydration and withdrawal of simple cures (such as insulin and antibiotics) and by placing in the hands of bureaucrats the power of non-voluntary abortion and sterilisation the legislation gravely endangers the mentally incapacitated.


Solicitor Jacqueline Laing lectures at the department of law, governance and international relations at London Metropolitan University