Wednesday 16 September 2009

Let's help Ireland avoid a British-style pro-euthanasia Mental Capacity Act

The Law Reform Commission of Ireland is recommending legislation which would allow euthanasia by denial of food, fluids and reasonable medical treatment. The Commission's proposals mirror almost exactly the British government's Mental Capacity Act 2005 and the Blair government's claims about that Act. The Blair government's Mental Capacity Act 2005 enshrined and expanded euthanasia by neglect in English law.

The (English) Mental Capacity Act 2005 enshrined the principles of the 1992 Bland judgment in English statute law, expanded to cover a much wider range of circumstances. Tony Bland, who was severely brain-damaged, was dehydrated to death following a ruling by the Law Lords that tube-delivered food and fluids was medical treatment and could be withdrawn from him in order to cause his death. The Law Reform Commission of Ireland's proposals draw heavily on the Bland judgment, similar subsequent English court judgments and on the (English) Mental Capacity Act 2005. The Commission's press release says:
“Under the proposed legislation, an advance care directive could include an instruction to refuse life-sustaining treatment (treatment which is intended to sustain or prolong life and that replaces or maintains the operation of vital bodily functions that are incapable of independent operation) … The Commission recommends that a statutory Code of Practice on Advance Care Directives should contain detailed guidance for health care professionals, including the circumstances in which artificial nutrition and hydration (ANH) may be considered to be basic care or, as the case may be, artificial life-sustaining treatment.”
As well as advance directives or so-called living wills, the Irish Commission's proposals include powers of attorney over healthcare. In this regard, the Irish Commission's proposals may be even more radical that the pro-euthanasia (English) Mental Capacity Act 2005. Paragraph 3.100 of the Commission's report reads:
"Under the Code of Practice for the English Mental Capacity Act 2005, a person appointed under a lasting (enduring) power of attorney can only consent to or refuse life-sustaining treatment on behalf of the donor where the donor has specifically stated that they want the donor to have this authority. The Commission considers, however, that due to the importance of promoting patient autonomy, the proxy must have the power to refuse life-sustaining medical treatment."
Surely the good people of Ireland, many thousands of whom every year work to resist the repeated attempts to undermine its pro-life constitution, will not stand idly by at this attempt to import silent euthanasia? Please write to newspapers and other media outlets in the Irish Republic to:
  • alert people that the Commission's proposals mirror the English Mental Capacity Act 2005, which has entrenched and expanded euthanasia; and
  • urge the Irish government and Dail (parliament) to reject the Commission's proposals.
Fr John Fleming, SPUC's bioethical consultant, explains the (English) Mental Capacity Act 2005 as follows. The Act provides for euthanasia by omission of reasonable care, Fr Fleming says. It does this by a faulty understandings of ordinary care, autonomy and “best interests”.

Ordinary care

Fr Fleming explains Pope John Paul's teaching that the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. However, under the (English) Mental Capacity Act 2005, artificially-delivered food and fluids is seen as medical treatment.


Autonomy is the right to self-determination, the right to free choice. However, free choice is linked to fundamental human values and inalienable human rights such as the right to life. A person cannot exercise his autonomy by giving away his right to freedom, for example, by selling himself into slavery. Neither can he use his autonomy by denying his right to life as the (English) Mental Capacity Act 2005 permits.

Neither can my autonomy be exercised by another person. The (English) Mental Capacity Act 2005 falls prey to a false understanding of autonomy in this respect too. “Autonomy” cannot be handed on like a baton in a relay race, Fr Fleming says. You can make decisions on my behalf when I am not able to do that for myself but that is not an exercise in autonomy. It might be you acting autonomously on my behalf.

This leads to another danger: Relatives can be overcome with identifying with the patient's suffering and the problem of transference arises: "Please put grandma out of my misery".

'Best interests'

Hurt a child and the law intervenes, Fr Fleming says. The law ensures that parents' choices on behalf of their children are constrained by the child's objective “best interests”. However, the (English) Mental Capacity Act 2005 imposes no such constraint on those with power of attorney for, and doctors caring for, mentally incapacitated patients.. The patient's “best interests” in the new law are not objective but are subjectively defined.

The (English) Mental Capacity Act 2005 by enshrining in law euthanasia by neglect is the first legislative step to active euthanasia, and those behind it know that's the case, Fr Fleming says.

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