Month: July 2018

LIFE BITE: Court’s permission not required in agreed end-of-life decisions

/ Karen

apple-150579_1280The Supreme Court has now ruled that there is no requirement for families or doctors of patients in a permanent vegetative state to seek permission from the Courts prior to withdrawing medical treatment.

 

The case was brought before the Court after a man in his fifties, known as Mr Y, suffered a heart attack in June 2017 which resulted in extensive brain damage. Mr Y never regained consciousness and thereafter required assisted nutrition and hydration to keep him alive. His doctor concluded that if Mr Y ever did regain consciousness, he would be severely disabled and would be dependent on care from others for the rest of his life, an opinion was supported by other medical professionals. 

Mr Y’s wife and children were of the view that he would not wish to be kept alive given this prognosis.  The family and doctors agreed that agreed that it would be in Mr Y’s best interests for treatment to be withdrawn, which would result in his death within several weeks.

In November 2017, upon application by the NHS to the Court, the High Court granted a declaration confirming that it was not necessary to seek the Court’s approval for withdrawal of treatment from Mr Y when his medical team and family agreed that continued treatment was not in his best interests.

The Official Solicitor argued that human rights law required every case involving the withdrawal of medical treatment be the subject to a ‘best interests’ application, regardless of whether the medical professionals and families agree. Given the circumstances in this case, the Judge granted the Official Solicitor permission to appeal directly to the Supreme Court.

The question for the Supreme Court was, when dealing with patients with a prolonged disorder of consciousness such a Mr Y, whether a Court Order must always be obtained before life prolonging treatment can be withdrawn or whether, in some circumstances, treatment can be withdrawn without the Court’s involvement.

Mr Y sadly died prior to the matter being adjudicated upon though the Supreme Court determined that the appeal should go ahead due to the general importance of issues raised by his case.

The Supreme Court unanimously ruled that neither UK common law or the European Convention on Human Rights (ECHR) gave rise to an obligation to involve the Court to decide upon the best interests of every patient in cases such as Mr Y’s.

In the judgment, Lady Black indicated that; “If at the end of a medical process, it is apparent that the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare, a Court application can and should be made”.

Safeguarding your wishes on end of life treatment.

Cases of this nature can create a moral divide –those who believe in the sanctity of life may find the notion of withdrawing treatment in this manner deeply offensive.  However, for others, the idea of being compelled to endure an existence with virtually no quality of life can seem intolerable.

The law requires medics to take into account a patient’s express wishes when considering their medical care.  As such, a person can execute a ‘Living Will’ (also known as an ‘Advance Directive’) setting out the type(s) of medical treatment they would not want should they become gravely ill in the future and be unable to make or communicate decisions at that time.

A Living Will cannot insist upon medical treatment being given but it can specify if and when medical treatment should be withheld to allow death to occur.  This can include expressing a wish not to be resuscitated in certain specified and limited circumstances.

What are the benefits of making a Living Will?

There are several benefits to making a Living Will:

  • It can help you feel more in control of your circumstances and future care.
  • It can help you avoid painful or difficult treatments that may not always be helpful anyway.
  • It means your family will know what you want and can respect your wishes.
  • It can help avoid disagreements about your care and treatment within your family or health and social care team.

A Living Will should not be entered into lightly and should be discussed with both a medical practitioner and experienced lawyer to be fully aware of the implications, and also the practicalities of where this document may be held to ensure that it is available to medical practitioners should circumstances set out in the Living Will come to pass.

For further information on this area, please feel free to contact us here or post your comments below.

Divorce in NI – How Hard is Breaking Up to Do?

/ Karen

familynewThe Supreme Court has refused to allow 60-year-old Tini Owens a divorce from her husband of 40 years despite Mrs Owens claiming her husband had behaved badly towards her and she was unhappy in the marriage.  

Mrs Owens and her husband Hugh married in January 1978.  They separated in August 2013 with Mrs Owens stating that her husband had behaved unreasonably during their marriage in his “continued beratement” of her.  She gave examples of this behaviour in her divorce petition, which included criticising her in front of their housekeeper, arguing with her in an airport shop and not speaking to her during a meal.  Her husband was not accepting of these criticisms of his behaviour and defended the divorce. 

The Judge who dealt with the divorce hearing concluded that Mr Owens’ behaviour towards his wife had not been unreasonable and refused to grant a divorce, stating that Mrs Owens’ allegations were “exaggerated”, “flimsy” and that her husband’s conduct was “of a kind to be expected in a marriage”.   Mrs Owens claimed that this decision meant that she was effectively “locked in” to her marriage, and that it was unfair that she would have to wait 5 years before being allowed a divorce without her husband’s consent.

Mrs Owens appealed to the Court of Appeal who also rejected her arguments, and as such the matter was appealed onward to the Supreme Court where today, five Supreme Court judges have unanimously upheld the lower Court’s rulings. 

Following analysis of legal arguments, the Supreme Court President Baroness Hale stated that whilst she found the case “very troubling”,  it was not for Judges to “change the law”.  Lord Wilson indicated that it was a question for Parliament as to whether the law governing entitlement to divorce remained satisfactory.

So, what is the current law on divorce in NI?

The Owens case has given rise to calls for a change in divorce law as it stands in the UK and NI.  But what is the current law?  I’ve set out some of the main factors that principles legal position on divorcing in Northern Ireland:

1. You need to be married for at least 2 years before you can divorce.

In Northern Ireland, it is by no means the case that any married Tom, Dick or Harry (or their female counterparts!) can get a divorce.  Firstly, you need to have been married for at least 2 years before you can petition for divorce. This doesn’t mean that you are compelled to continue living with your spouse for a full 2 years – you can of course live separately.

2. You need to satisfy a ‘ground’ for divorce.

When applying for divorce, you must show that your marriage has ‘irretrievably broken down’ and you must satisfy one of the following grounds for divorce in order to evidence this breakdown: –

  • Unreasonable Behaviour  -This is where you submit that your spouse has behaved so unreasonably that you can no longer be expected to live with them. Types of unreasonable behaviour are wide ranging and can include physical or verbal aggression, lack of communication, financial control or misconduct and addictions
  • Adultery – In order to petition for divorce on the ground of adultery, you need to show the Court that your spouse has committed adultery during the course of the marriage. The person with whom your spouse had the affair can be joined and named in the divorce papers also.
  • Two Years’ Separation With Consent – This ground is available where both you and your spouse have lived separately for more than 2 years and your spouse consents to the divorce. You can have been living in the same property during this time but must have lived independently to one another. This can happen where, for example, you both live in the same house but have separate bedrooms and would not cook or clean or spend time with one another.
  • Desertion for Two Years – This is proven where your spouse has effectively ‘deserted’ you. This ground is technically difficult to prove and is very rarely relied upon in divorce proceedings.
  • Five Years’ Separation – This ground is available when you and your spouse have lived separate for more than 5 years. You do not require your partner’s consent on this ground.

What About A ‘No Fault’ Divorce?

High profile cases such as the Owens case have given rise to a call for a “no fault divorce” to be introduced into the law.  It is presumed that a ‘no fault’ ground for divorce would allow unhappy couples to formally end their marriage without either person being held responsible for the breakdown of it. Some say that such an option could ease some of the stress, pain and bitterness that couples often endure during separation. Others believe that to make it effectively ‘easier’ for couples may damage the sanctity of marriage and that couples may not think carefully enough before entering into a marriage if they feel that they can easily divorce if it doesn’t work out.

Both sides of the argument have valid points however in my experience as a lawyer in this area, no divorce is ever ‘easy’ – feelings are hurt, emotions are high and often children are caught in the middle.   It will be interesting to see whether steps are made by the government to introduce such a ground in light of today’s judgement.

If you need any further information on divorce please feel free to contact us here