Those readers who follow legal stories in the press will not have failed to notice a spate of cases concerning end of life decisions.
Last month, the Supreme Court ruled that an application may no longer be needed for an order to withdraw life-sustaining treatment for a person with a ‘prolonged disorder of consciousness’. “An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant)”  UKSC 46”.
This leads us to the very troubling, and hugely important question that clients sometimes ask: “who makes my decisions if I cannot?”
Below we consider two scenarios: Miss P, and Mr Y. Miss P is a case I was involved in some time ago, and Mr Y has recently been in the news.
A lady who was going through a non-related court case in a different area of law (child residence and contact). She was, one evening, playing hockey with some friends, many of whom were nurses. Having tee’d off (or whatever the expression is to start a game – I’m more rugby than jolly hockey sticks!) Miss P felt a little dizzy. She collapsed, having suffered a very serious aneurism.
For a while it looked very bad indeed. Her family and medics thought she would not make it, and the previous child court case returned to court. After months of medical help, and having been paralysed down one side, Miss P fortunately made a near full recovery.
As soon as she felt able to do so, she made a Will, and had a Health and Welfare Lasting Power of Attorney (“LPA”) drafted, so that decisions could be made in accordance with her wishes, should she ever again be unable to do so.
Miss P, with legal assistance, drafted a “Living Will” setting out in detail what she would like to happen in the event of another tragedy.
Fortunately for her she was able to put measures in place to ensure that her wishes would carried out, if needed.
The court referred to the patient in this case as Mr Y. I will do the same here.
Mr Y, terrifyingly, a fit man in good health, had a heart attack and fell unconscious. The medics found it highly unlikely that he would ever regain consciousness.
Unfortunately Mr Y had neither document referred to above. He had not given any instructions as to what his wishes were if he became unable to make decisions for himself.
Mr Y’s family and medical team made the difficult decision that, in the absence of any chance of recovery, he should be allowed to die by withdrawing his feeding tube.
If families and doctors are in agreement, medical staff will now be able to remove feeding tubes without making an application to court. Historically, the usual route would have been for the family and doctors to apply to the Court of Protection for an order allowing them to withdraw treatment. This was the case regardless of whether or not the family and medical professionals were in agreement that withdrawing treatment was in the patient’s best interests.
In this case, The NHS trust asked the Court to declare that it was not necessary to apply to the Court of Protection for a decision when the doctors and the family all believe it is in the patient’s best interests.
The High Court agreed, and the official solicitor then appealed on behalf of Mr Y. The Supreme Court decision means that this appeal has now been dismissed.
Perhaps as expected, the judgement has divided opinion. For many years, when a patient is in a minimally conscious or vegetative state, relatives agree, and it is considered to be in the best interests of the patient, doctors have been able to withdraw many types of treatment that will result in the end of the patient’s life.
For example, life-saving dialysis. Doctors have not needed the permission of a court to be able to do this.
Withdrawing food and water has been handled differently. Since 1993 and the case of Hillsborough victim Anthony Bland, the generally agreed consensus is that doctors must seek the approval of a court, regardless of whether the family agrees with the doctor’s suggested approach.
Last month’s decision makes clear that, so long as doctors and families are in agreement, and it is in the best interests of the patient, the court need not be involved.
From a probate perspective, this reminds of the importance of a client clearly setting out their wishes, should you be unable to make decisions for yourself. The need for LPAs, “Living Wills”, and other forms of advance decisions can offer a client much needed reassurance and clarity around end of life actions and treatment.
For advice on interpreting LPAs, “Living Wills”, or any other area of probate law, contact the Becket Chambers Probate Team via the clerks at firstname.lastname@example.org