Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights.

  • Great Britain. Parliament. Joint Committee on Human Rights
Date:
2004
Catalogue details

Licence: Open Government Licence

Credit: Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights. Source: Wellcome Collection.

    64/76 (page 60)
    Question 6: In view of the urgency of remedying the deficiencies identified by the European Court of Human Rights can the Government assure the Committee that the necessary remedial measures will be introduced into the current Bill to ensure Parliament’s early attention to the problem? 3. WITHHOLDING OR WITHDRAWING LIFE-St JSTAINING 7 ft ning The Committee is satisfied that the inclusion in clauses 24 to 26 of the Bill of provision for the making of advance decisions to refuse treatment does not itself raise issues of compatibility with Article 2 ECHR, but it has some concerns about whether the safeguards provided are adequate to ensure that such advance decisions do not lead to wrong decisions being made about the existence, validity and applicability of an individual's advance decision to refuse treatment. It is concerned, first, about whether the Bill requires sufficient formality in the making of an advance directive and, second, about whether a person making an advance directive which extends to the refusal of life-sustaining treatment would be aware that artificial nutrition and hydration (“ANH”) is classified as “treatment”. estion 7: What is the reason for not requiring that advance directives carry the additional safeguard of having to be made in writing? Question 8: Is it the Government's intention that a specific advance refusal of ANH would be required in order to be effective as an advance directive? ance intl the Code of Practice make clear to people - es that ANH is is regarded as treatment and that an schncit onk fusir ig Hieattstalnlnig treatment may_ therefore be interpreted as Srunreesclh ile toarefusalof ANH? —s_—| In the recent decision of the High Court in the case of Burke,’ it was held that in order to comply with a patient’s right to autonomy under Articles 3 and 8 of the ECHR, an advance directive positively requiring the provision of ANH when they subsequently lack capacity is determinative of the question whether such treatment should be provided. The provisions in the Bill only cover advance directives refusing treatment. to Be eee and if not, psig not? The Committee is also concerned that the presumption in favour of life-sustaining treatment is not sufficiently strong in the Bill and that in particular its provisions may have the effect of permitting the withdrawal of ANH from people lacking capacity in circumstances which may breach that person’s rights under Articles 2, 3 and 8 ECHR. In Burke, the High Court held that it was hard to envisage any circumstances in which a withdrawal of ANH from a sentient patient, whether competent or incompetent, would be compatible with the Convention. Withdrawal of ANH from a sentient patient lacking capacity would expose the patient to acute mental and physical suffering and therefore be in breach of Article 3, unless the patient's life, if thus prolonged, would from the patient's point of view be intolerable. The only circumstances in which the court could envisage that there would be no breach of Article 3 as a result of the withdrawal of ANH is where it is withdrawn in circumstances where it is serving absolutely no purpose other than the very short prolongation of the life of a dying patient who has slipped into his final coma and lacks all awareness of what is happening. 8 R (on the application of Burke) v The General Medical Council [2004] EWHC 1879 (Admin) (30 July 2004)