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

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  The family and doctors agreed that agreed that it would be in Mr Y’s best interests for treatment to be withdrawn, which would result in his death within several weeks.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of consciousness such a Mr Y, whether a Court Order must always be obtained before life prolonging treatment can be withdrawn or whether, in some circumstances, treatment can be withdrawn without the Court’s involvement.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.

Let’s Talk About….Death

deathDeath is something that most of us naturally prefer to avoid thinking about. However, as Benjamin Franklin famously said, “nothing in life is certain except death and taxes”.

“Keeping quiet” or “putting off” talking about our wishes for end of life and death can be problematic both for us and those who care for us.  Many of us have misconceptions about what might happen during end of life and death and the fact that we don’t talk about it, only exacerbates this.

Citizens Advice NI, Marie Curie and the National Association of Funeral Directors believe that a public health campaign is needed to encourage people to start talking and thinking about their wishes.

A recent report by Northern Ireland investigative publication, The Detail considers the issues around death.  These include the barriers to accessing advice and information and how the repercussions of death can have surprising, significant and detrimental implications in the long-term if we don’t take steps to rectify them. It looks at a wide range of issues including the following:-

Funeral costs

The funeral industry and how the cost of burial can vary dramatically across Northern Ireland – a “postcode lottery”.  Due to the sudden and distressing nature of many deaths and the fact that we don’t often want to plan ahead, we often find ourselves paying much more than we expect for a funeral. Sadly, this can result in to debt or poverty for those who are bereaved. The report looks in detail at the cost of death across council areas in Northern Ireland and calls for a uniform price.

More assistance with Funeral Payments

Funeral payments are available to those on receipt of certain benefits and cover the cost of a simple, respectful, low cost funeral. Sarah McCully Russell from Citizens Advice NI calls for an increase to these payments and more transparency and accessible information surrounding them.

Bereavement benefits

Bereavement benefits were reduced substantially in April 2017, with bereaved children being the hardest hit. Many people aren’t aware that cohabiting partners and their children are excluded from these benefits, despite societal changes and marriage being irrelevant to other benefits.  A landmark case on this issue is due to be heard by the Supreme Court sitting in Belfast in April 2018.

Living with a terminal illness

In the report , one gentleman suffering from terminal cancer shares the benefits of being able to express his wishes regarding donating his body to medical science and to make a Will. This has allowed him and his family to have peace of mind knowing his affairs are in order and he believes, allowed him to carry on living. He feels that making these choices now will make it easier for his family later.

The need for care

Marie Curie UK estimates that 3,000 people are missing out on the care and emotional and physical support that they need due to a lack of awareness and a reluctance to accept death.

The full report includes an interview with Siobhan McLaughlin, the woman involved in the landmark case on Bereavement Benefits currently before the Supreme Court, and her solicitor Laura Banks of Francis Hanna & Co . Siobhan told The Detail that she took the case for her children, because they are as deserving as any other child who has lost a parent:-

“You can have two 10-year-olds going through the same thing – both have lost their dad. Yet society has said to one of them because your parents were married you deserve this, and to the other one, you don’t. It makes them feel irrelevant. I felt I had to give it a shot,”

“For us it has made everybody more aware that this is happening and how wrong it is that we have two sets of children and one of them has been stigmatised by this and an action their parents took, which they have no say over.”

Read the full report from The Detail here 

 

 

 

Living Wills & Advance Directives

willsThis year from 19th – 23rd June 2016, Belfast hosted the British Medical Association (BMA) Annual Conference.   One controversial topic debated during the Conference was the BMA’s position on assisted suicide. The issue centered on whether the BMA should adopt a stance of being “neutral” rather than “opposed” to assisting a person ending their own life.
The past few years has seen a lot more discussion on this topic, which is not surprising given that most of us will live a lot longer than our grandparents, and as a society we are much more alert and sensitive to individual rights and personal choice.

We are all familiar with heartrending stories of gravely ill people who want to be able to choose their time of going if their suffering becomes intolerable to them.  Such stories can create a moral divide – those who believe in the sanctity of life may find the notion of ending their own or someone else’s life deeply offensive.  However, for others, the idea of being compelled to endure extreme pain or an existence with virtually no quality of life can seem intolerable.

What is the current law in NI on assisted suicide?

The law here in NI is that whilst it is not illegal to commit suicide, it is illegal to assist a person in committing suicide.

If assisted suicide were to become lawful, the fear amongst many is that some vulnerably ill people could feel under pressure to end their lives prematurely.  There is no doubt that if our  legal system were to contemplate the legality of assisted suicide, strong protections would have to be incorporated into the law to ensure that those who are physically or mentally vulnerable, or both, would be identified and afforded very considerable protection against any abuse.

Whilst assisted suicide is not legal in NI, there are ways and means by which a person can indicate how they would like to be looked after and cared for should they ever lose the ability to communicate.

What is a Living Will/Advance Directive?

A Living Will, or Advance Directive as it is also known, is a document that an adult with mental capacity can execute.  The purpose of a Living Will is to set the type of medical treatment you would not want should you become gravely ill and unable to make or communicate your decisions at the 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 a number of 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.

Whether there is a change in the law on this issue in the future or not, there can be no doubt that it is a worthwhile exercise to consider what your future wishes may be should you become ill.   A lawyer experienced in this field can offer specialist advice and assistance in this area should you require it.

LJohnstonThis blog post was provided to us by Linda Johnston, Partner in FRANCIS HANNA & COMPANY SOLICITORS.  Linda specialises in the law surrounding ELDER CLIENT CARE, FUTURE PLANNING and LEARNING DISABILITY as well as being an accredited member of SOLICITORS FOR THE ELDERLY. For further advice or assistance on LIVING WILLS, please CONTACT US HERE or contact Linda on lj@fhanna.co.uk

Enduring Powers of Attorney – All Your Questions Answered

 

elderclientNone of us like to think of the possibility as we grow older of getting too ill, either mentally or physically, to manage our property and finances ourselves.

We can all easily assume that, somehow, we will be able to manage our affairs throughout our lives – that we will always, for example, be physically capable of getting to the bank or post office to withdraw money or pay bills, or that we will always be mentally capable of understanding and signing documents connected to our property.
Whilst many of us will throughout life be able to look after our affairs as independently as ever, the sad truth of the matter is that for others, the ability to be physically or mentally capable of managing property or finances can be unexpectedly lost through accident, injury or the onset of illness such as dementia.

It is therefore reassuring to know that there are things that you can do to help you plan for the future should the worst happen.  You can plan for these possibilities by taking sensible precautions whilst you are mentally and physically capable of doing so.

 How? 

By executing a document known as an Enduring Power of Attorney (EPA)

So, what exactly is an Enduring Power of Attorney?

An Enduring Power of Attorney is a Deed by which you can give authority to another person (your “Attorney”) to act on your behalf in relation to all or specified property and financial matters.

An EPA is not a Will.  A Will is only relevant after your death.  An Enduring Power of Attorney deals with the management of your property and finances when you are alive, but unwell.

Do I lose control when I sign an EPA?

By executing an EPA, you are potentially sharing control of your property and finances with your Attorney.

You can however state that the EPA is not to come into operation unless you become mentally incapable.   Some people prefer to keep the EPA restricted in this way.  Other people choose not to, as they wish their EPA to be effective if they remain mentally capable but become physically incapacitated and unable to manage their banking etc.  This is an important choice which should be carefully considered before executing an EPA.

Who should I appoint as my Attorney?

You can technically appoint anyone to be your Attorney however it is important that you ensure that you appoint someone that you trust completely, whether a family member, friend or professional advisor.   An EPA gives your Attorney complete control of your property and finances (unless restricted) and so you must be confident that your Attorney will have your best interests at heart.

It is also important that you discuss your intentions with any Attorney you intend to appoint as an Attorney must accept such an appointment, and sign the EPA form after you.

Can I have I have more than one Attorney?

Yes, indeed it is often practical to have more than one Attorney. If you choose to appoint more than one Attorney, you must decide whether they can act independently of each other or whether they must always act together.  This choice is not entirely straightforward you may need legal advice to guide you in this regard.

What Powers would my Attorney(s) have?

Subject to the terms of the particular EPA, an Attorney has wide authority to stand in the Donor’s shoes and make all decisions about your property, income and finances, which you could have made, with a few exceptions.

An Attorney cannot do the following:-

  • Make a Will for you
  • Sign an affidavit
  • Perform any act which you were authorized to do because of personal appointment, personal skill or a statutory direction.
  • Make medical or personal welfare decisions for you.
I don’t have assets or property of my own – is there any point in signing an EPA?

Regardless of whether you own property or have assets, someone will need to manage your pension or benefits if you cannot do so yourself. This will be made much easier with an EPA in place.

All of my assets are jointly owned with my spouse/partner – would I still need an EPA?

If it became necessary for your jointly owned house to be sold and you were not mentally capable of signing the deeds yourself, only a person with authority (such as an Attorney) can sign on your behalf.  One joint owner cannot sign deeds for all co-owners.

Often, joint bank accounts are frozen if a bank becomes concerned that one party is no longer capable and there is no EPA is in place. This can cause cash flow problems for all of the account holders. This can be avoided with an EPA.

What responsibilities would my Attorney have?

At all times, your Attorney must act in your best interests. Your Attorney must apply to register the EPA with the High Court if you have become or you are becoming mentally incapable of managing your financial affairs.  During the registration process, the authority given to your Attorney is effectively “on hold” until the process has been completed and the original Deed is issued bearing the court registration stamp.

Your Attorney is obliged to give you formal notice if steps are being taken to register your EPA.  As an added protection, your Attorney is also obliged to give notice to a number of your next of kin.  You, or family members notified can lodge an objection with the High Court, if you or they consider the registration of the EPA to be inappropriate.

Can I change my mind and revoke an EPA?

Yes, you can revoke an EPA while you remain mentally capable, and your EPA has not been used.  You should give notice of revocation to your Attorney.  However, once an EPA has been registered, it can only be revoked by the High Court.

If I recover my capacity, who is in charge of my affairs then?

There is a procedure to de-register an EPA which would allow you to resume control of your affairs yourself.  It would be important to seek legal advice to guide you on this process.

Is it expensive to make an EPA?

No. Legal costs are modest as the paperwork is not complicated once the important decisions have been made with professional help.  In fact, it would be much more expensive NOT to have an EPA should you have the misfortune to lose your capacity.

LJohnstonThis article was provided by LINDA JOHNSTON, Partner at FRANCIS HANNA & CO SOLICITORS.  Linda has a significant experience in the areas of FUTURE PLANNING.  For further information on this area of law, feel free to CONTACT US HERE AT LIFE LAW NI or contact Linda at lj@fhanna.co.uk