BY SIMON CALDWELL
ARCHBISHOP Peter Smith of Cardiff has toughened his stance against the Government’s plans to legalise “living wills” after behind-the-scenes negotiations failed to secure the Church’s desired changes to the draft legislation.
The archbishop severely criticised the Mental Capacity Bill in a briefing note released on Monday which was issued as a response to the failures of the Department for Constitutional Affairs to act on the anxieties expressed by the Church that the Bill might lead to the more widespread practice of euthanasia by omission.
Anti-euthanasia campaigners claim that the starving and dehydrating of mentally incapacitated patients to death has been effectively legal since the House of Lords sided with doctors who wanted to end the life of Hillsborough victim Tony Bland in 1993.
Since then, the courts have allowed a number of other patients in vegetative state to be killed in the same way.
Critics of the draft Bill have pointed out that its provisions would remove the authority of the courts to rule on such life-ordeath cases and transfer the power to patients via a “living will” or advance legal directive; a lasting attorney appointed by the patient; a deputy appointed by the court and, to a limited extent, a person described as a “consultee”.
It is feared that inevitably the scope for the practice of euthanasia would be widened and the protection offered to patients by centuries of homicide laws would in turn be diminished.
Through his discussions with government ministers, Archbishop Smith succeeded in gaining Clause 58, which states that nothing in the Act could be taken to affect the law prohibiting assisted suicide.
But in the new briefing note, Archbishop Smith and coauthor Dr John Finnis, a Professor of Law at Oxford University, acknowledge that the concession was not enough to prevent the practice of euthanasia. “A declaratory clause preserving the law against euthanasia and assisted suicide, though the essential minimum, would not by itself be a sufficient safeguard against euthanasia and suicide by omission because it would not remedy an existing serious deficiency in the law about hastening death by omission, which has been in disarray since the decisions of the highest court in the Bland case in 1993,” they said.
The Church is now demanding two “vital amendments” to the Bill before it reaches its Second Reading in the autumn. They are asking MPs to take up their case.
One clause would withhold the “statute’s authority from any proxy or advance decision made with a purpose of bringing about the death of the person about whose personal welfare is made”.
The other addresses the notion that death might be in the “best interests” of the patient by seeking to make clear that “the determination of ‘best interests’must take into account the person’s life and health so far as they could properly be the object of health care”.
Only last month, Archbishop Smith had welcomed the Bill and praised the efforts of Constitutional Affairs Minister Lord Filkin to allay the fears of prolife groups and the Catholic Church.
Archbishop Smith told The Catholic Herald this week that the latest briefing note did not represent a U-turn of his position but was consistent with months of dialogue to counter the worst aspects of the Bill.
“We have not changed our stance at all,” said Archbishop Smith, the chairman of the Department for Christian Responsibility and Citizenship of the Bishops’ Conference of England and Wales.
“What we said right from the start is we need to engage with the Government on this Bill. Standing aside and saying the whole thing is fatally flawed is not the way to deal with it.
“We have achieved that to a significant extent. We have Clause 58. We are saying that’s a good thing. It is a very significant and welcome change. However, there are two further amendments which we have debated with Lord Filkin and his officials which they haven’t moved on. We have spelt out in detail why we are asking for these further amendments because at the end of the day if they were added they would lay to rest many of the fears about the Bill’s impact.” He added: “What we are hoping for is MPs to read the full briefing and when it [the Bill] comes to debate in the House could encourage the Government to accept these amendments.” Disagreements over how the Bill should be addressed have split the pro-life movement.
Archbishop Smith has supported the approach of the All Party Parliamentary ProLife Group and the Right to Life pressure group which have sought to persuade the Government to make changes to the Bill so it would not widen the practice of euthanasia.
But the Society for the Protection of Unborn Children, the Guild of Catholic Doctors, the Catholic Union of Great Britain and the anti-euthanasia pressure group Alert have pursued a more aggressive approach, seeking to have the Bill killed off completely.
Sources claim that the divisions are partly being fuelled by personal grudges between leading figures within the prolife movement.
Meanwhile, some observers believe Church bureaucrats are exerting a pro-government bias in the advice they have given to the bishops in order to dissuade them from confronting Ministers directly and publicly.
Paul Tully, general secretary of Spuc, said he regarded the briefing note as a “significant development in the thinking of the hierarchy on this Bill”.
Itw as also welcomed by James Bogle, a barrister and chairman of the Catholic Union, which advises the Church on political and legal matters.
Mr Bogle said: “I am pleased, as are many of my legal and medical colleagues, that the statement recognises and emphasises the very considerable weaknesses in the Mental Capacity Bill. I agree with the statement when it says that it is unacceptable in its present state and that Clause 58 is not a safeguard against euthanasia and suicide by omission.”