Thursday, December 5, 2013

Assisted Decision-Making (Capacity) Bill 2013

Our Colleague Seamas de Barra has carried out an analysis of the Assisted Decision-Making (Capacity) Bill 2013, which is set out below. This bill has many similarities to the British Government’s Mental Capacity Act of 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to death following a ruling by the Law Lords, that tube-delivered food and fluids was medical treatment and could be withdrawn from him in order to cause his death.

Enshrining euthanasia by neglect is actually the first step towards active euthanasia.

Seamas de Barra writes:
I refer to the Assisted Decision-Making (Capacity) Bill 2013, the Order for whose Second Stage is due to be made on Tuesday, 3 December 2013, and whose Second Stage is to be commenced then. I attach a copy of the Bill and the Explanatory Memorandum at the end of this e-mail.
The Assisted Decision-Making (Capacity) Bill 2013 was presented at First Stage on July 15, 2013. A related Bill, the Advance Healthcare Decisions Bill 2012, No. 2 of 2012, a Private Member’s Bill, sponsored by Deputy Liam Twomey Fine Gael, was withdrawn by Minister for Health and Children, Dr James Reilly, in January 2013, if memory serves me well. Deputy Twomey, as Senator, had sponsored a previous Private Member’s Bill in the Seanad, of the same title in 2010, the Advanced Healthcare Decisions Bill 2010, No. 26 of 2010. It seemed to me at that time that the two Twomey Bills could be have been used to introduce euthanasia by the back door into Ireland.
I have speed-read through the Assisted Decision-Making (Capacity) Bill 2013, No. 83 of 2013. It is a relatively long Bill –– over 100 pages including three Schedules, the Third Schedule being the Convention on the International Protection of Adults, the Hague, January 13, 2000.
       It seems to be tightened up significantly compared with the previous Bills, but nevertheless there are certain matters in this Bill that are matters of concern. I refer you to section 4 (2), (a), (b), and (c); section 25 (a) (vi), (vii); section 27 (4), section 41 (2) (b), section 54 (3), and 54 (3) (a), (b), section 70 (1), (a), and (b).

            Section 4 (2), (a), (b), and (c):
            (2) Notwithstanding any other provision in this Act, the High Court, and not the court, shall have jurisdiction relating to every matter in connection with—
(a) non-therapeutic sterilisation,
(b) withdrawal of artificial life-sustaining treatment, or
(c) the donation of an organ,
where the matter concerns a relevant person who lacks capacity. 

Before the Second World War in Germany physically-handicapped and mentally-handicapped persons were sterilized. If you have seen the film Judgment at Nuremberg, starring Spencer Tracy as Chief Trial Judge, Judge Dan Haywood, and Burt Lancaster as German judge during the Nazi period, Ernst Janning, this comes up as one of the charges against Janning. Oliver Wendell Junior, a prominent U.S. judge in the 20th century agreed with that policy, and I believe that Negroes who were in the custody of the State were sterilized; I think it may still be the case where people are in receipt of welfare in certain U.S. states that it is conditional on their being sterilized. If that is not still the case, it was the case until very recently. 

Section 25 (a) (vi), (vii): 
(a) may, without prejudice to the generality of section 23(2)(b), authorise a decision-making representative for the relevant person to make decisions on behalf of the relevant person in respect of any one or more than one of the following matters:
(vi) whether or not the relevant person may travel outside the State;
(vii) granting or refusing consent to the carrying out or continuation of a treatment of the relevant person by a healthcare professional; 
Section 27 (4):
(4) A decision-making representative for a relevant person shall not refuse consent to the carrying out or continuation of life-sustaining treatment for the relevant person. 
Section 41 (2) (b):                                                                                                                                          (2) A personal welfare decision—
(b) extends to giving or refusing treatment by a person providing healthcare for the donor other than refusing life-sustaining treatment. 
Section 54 (3), (a), (b):
(3) Nothing in this section shall be construed to prevent an informal decision-maker, pending a decision concerning any relevant issue by a court or High Court exercising its powers under this Act, from—
(a) providing life-sustaining treatment for a relevant person, or
(b) doing any act which he or she reasonably believes to be necessary to prevent a serious deterioration in the health of a relevant person. 
Section 70 (1), (a), (b):

(1) In this Part— 10 “adult” means a person who—
(a) as a result of an impairment or insufficiency of his or her personal faculties, cannot protect his or her interests, and
(b) has reached 18 years of age; 
For all the above reasons I think the Bill should be withdrawn.

Séamas de Barra,