End-of-Life decisions: Who makes them?
Posted on 1st August 2018 at 09:12
Before the Supreme Court's Judgement handed down on 30th July 2018, the right to make an end-of-life decision on behalf of someone in a vegetative state was controlled by the Court of Protection. Also controlling a person's affairs should they lack capacity and not have appointed an Attorney (see Lasting Powers of Attorney and who should make one), the Court of Protection previously ruled on cases such as whether a person's feeding tubes should be withdrawn, allowing a person to die naturally, when they are unable to make the decision themselves.
Although both the patient's family and the Doctors may agree that removing the feeding tubes is the best way forward for a person in a vegetative state, the Doctors usually have to apply to the Court of Protection to rule that they are allowed to do so. However, following yesterday's Judgement, if both the patient's family and the Doctors are in agreement, they can now remove the tubes of a person without going through the Court.
The new ruling, which considered both the Mental Capacity Act 2005 (i.e. whether the patient is considered to have capacity) and the current law surrounding withdrawal of life-sustaining treatment, does not necessarily mean that no cases will ever need to be heard by the Court of Protection now, just that when the patient's family members and Doctors agree the best course of action is to withdraw the feeding tubes they can, on behalf of the person in a vegetative state, make a decision. However, should there be any disagreement between the patient's family members and the Doctors, the decision will ultimately still lie with the Court.
This case was sparked by the family and Doctors of a man, Mr Y, who sadly suffered from a cardiac arrest in June 2017, resulting in him falling into a vegetative state. He did not regain consciousness whatsoever following his cardiac arrest. His family were of the belief that he would not want to be left in the state that he were in, especially considering the prognosis was that he would not regain consciousness, or if he did that it would result in him requiring full-time care and assistance. So, the NHS Trust therefore applied to the Queen's Bench Division of the High Court for a declaration that they firstly were not required to seek the Court's approval for the withdrawal of CANH (clinically assisted nutrition and hydration) if both the clinical team and the patient's family agreed that it was not in the patient's best interests that they continue to receive the treatment, and secondly that no civil or criminal liability would arise if CANH were withdrawn.
Even though there are many arguments both for and against the decision made by the Supreme Court, it allows the patient's family and Doctor's to make a decision on behalf of the patient, yet still requires them to follow the relevant procedures and laws. For example, the patient in question would have the prognosis that they will not regain consciousness, and will have had a second opinion, so many would argue that patients are still safeguarded against any unsavoury situations.
An alternative to leaving the decision up to the Doctors and your family members, is to make a Living Will (to specify your desires and wishes about your treatment and care) and a Lasting Power of Attorney (to grant specific people the ability to make decisions on your behalf), which as can be seen from the case of Mr Y, can unfortunately be needed at any age.
To discuss making a Lasting Power of Attorney or to write your Living Will today, call us today on 01772 783 314 or email firstname.lastname@example.org. We offer free half-hour consultations and fixed fees to help you get your life sorted.
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