A new report on organ donation says that a patient becomes a potential donor "when a decision has been taken – in the best interests of the patient – that further active treatment is no longer appropriate and should be withdrawn". That phrase from Organs for transplants – a report from the Organ Donation Taskforce may seem innocuous or even reasonable. However, the words which ring alarm bells are "treatment" and "best interests". In recent years, those words' legal meanings have been radically changed for the worse.
In 1992, the House of Lords dealt with the case of Mr Tony Bland, who had been severely brain-damaged in the Hillsborough football stadium disaster. Mr Bland was said to be in a persistent vegetative state (PVS), which is better described as a persistent non-responsive state. The judges let doctors stop giving him food and fluids by tube and thus allowed intentional killing by neglect for the first time.
The Lords had turned English law on its head by ruling that tube-feeding was medical treatment. Because this so-called treatment offered no hope of curing Mr Bland, it was futile and, on that basis, could be withdrawn. The Law Lords said that keeping someone alive who was severely handicapped was not necessarily in his best interests and, on that basis too, treatment (i.e. feeding) could be withdrawn. They also ruled that, if Tony Bland's feeding tube was withdrawn, the cause of his death would be deemed as his underlying disease, not the lack of sustenance. The tube was removed and Mr Bland died from dehydration (not PVS) after nine days.
Since then, the English courts have made a number of similar decisions. Worse, the 2005 Mental Capacity Act (MCA) enshrined the Bland judgment in statute law and extended it. The way that the government bulldozed the MCA through parliament is very like the way they're currently pushing through the Human Fertilisation and Embryology Bill, as I blogged yesterday.
The MCA defines treatment even more broadly than the judges in Bland. This means that other kinds of basic care (maybe even spoon-feeding) could be withheld from patients. The MCA also creates a test for establishing patients' best interests. This includes many woolly and subjective factors but it makes no reference to the patient’s life or health, which used to be the criteria in case law. A doctor can thus disregard life and health when considering a patient's best interests.
This situation applies to any mentally-incapacitated patient, not just to people with a living will or power of attorney. Patients with a wide range of disabilities can thus be denied necessary treatment or care under the MCA. These include patients who, like my late father, suffer a stroke which worsens their dementia, and Alzheimer's sufferers.
The MCA also gives third parties (such as people with lasting powers of attorney) dangerous powers to insist upon life or death decisions. It also enables government-approved "independent mental capacity advocates" and court-appointed deputies to influence such decisions.
While the law has been changing, so has medical practice in many
Organs for transplants – a report from the Organ Donation Taskforce was published yesterday by the Department of Heath (which covers