In recent months, there has been a great deal of press coverage relating to the rights of the minimally conscious to choose their time of death. There has also been controversy courted over the Liverpool Care Pathway, a standardised model of care for those in their final days. There are few subjects more emotive than whether an individual has a right to die at the time and place of their choosing when balanced against the absolute obligation upon the medical profession to preserve life.
Right to life v right to die
In Re M [2011], it was held that a minimally conscious woman’s right to life prevailed, despite having little more than primitive responses and without regard to her family’s representations that she had informally expressed the wish that she did not want to be kept alive in such circumstances. In short, the law does not allow medical professionals to withdraw treatment from an individual who is conscious to whatever tiny degree and however remote the chance of recovery.
Court of Protection
The turmoil of families in such situations is abundantly clear because the distinction between not wanting to lose a loved one and not wanting them to suffer is blurred. This turmoil can be intensified by expensive and protracted Court of Protection proceedings, but may be circumvented by an Advanced Decision. An Advanced Decision was given statutory credence under the Mental Capacity Act 2005 and it allows for an individual (with capacity) to refuse future treatments. In order for it to be valid, it must be:
- In writing;
- Signed and witnessed;
- Stated that the decision will stand even if an individual is at risk of death if ventilation, artificial nutrition and hydration, and other potentially lifesaving interventions are to be refused;
- Regularly reviewed.
It is noted that if doctors do not abide by a valid Advanced Decision then assault charges could arise against them. While it is recommended that these instruments are communicated as soon as practicable to family members and doctors, one company, MedicAlert, provides a helpful way of allaying clients’ fears that their wishes may be ignored through special jewellery that identifies health conditions, Advanced Decisions or medications.
LPA
Consideration should also be given to health and welfare Lasting Powers of Attorney (LPAs). These are mechanisms that allow an individual to appoint an attorney to make decisions in connection with their health and welfare when they are unable to make these decisions themselves. This may include choices relating to accommodation or life-sustaining treatment. As long as the LPA is registered, it can be used to make such decisions only when the person making it has lost their capacity. This may also circumvent problems that arise in connection with Deprivations of Liberty (DoLs) and any costly legal challenge thereafter. Put simply, DoLs arise when individuals lacking capacity have their movement and freedom restricted in order to keep them from harm. This can include restricting visits or being put in a care home, perhaps against the wishes of family, friends and the individuals themselves.
Lasting power of attorney health and welfare
However, a recent study by the Alzheimer’s Society called My Life until the End shows that, following a Freedom of Information request to the Office of the Public Guardian, only 20% of all LPAs registered since 1 October 2007 were for health and welfare. While the arguments in connection with good end of life planning are strong, it is clear that professionals need to be more proactive in this area to ensure that dignity is maintained as far as possible. This is especially compounded where the client has a dementia diagnosis.
End of life care planning
Furthermore, it is also possible for individuals to express their end of life wishes, including where they wish to die, by completing a Preferred Priorities For Care Plan. While the Mental Capacity Act states that those providing care must have regard to wishes and feelings where capacity is lost, such a document, while persuasive, is not legally binding. Of course, this again strengthens the importance of Advanced Decisions and LPAs, as well as the need for effective will planning.
As a natural consequence of a client’s recent bereavement or imminent life-changing event, they may consider their own mortality and subsequently their end-of-life wishes. If you would like more information on Advance Decisions or Lasting Powers of Attorney, then please contact our Private Client Services department or call us on 0117 604 9000.
