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  The family and doctors agreed that agreed that it would be in Mr Y’s best interests for treatment to be withdrawn, which would result in his death within several weeks.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of consciousness such a Mr Y, whether a Court Order must always be obtained before life prolonging treatment can be withdrawn or whether, in some circumstances, treatment can be withdrawn without the Court’s involvement.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

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