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Landmark ruling - withdrawal of life support

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There has been a Landmark ruling on the withdrawal of life support for those in a vegetative state

This week the Supreme Court ruled that doctors and families do not need to seek the permission of the court to withdraw end of life care for someone in a persistent vegetative or minimally conscious state.

The case itself concerned Mr Y, a 52 year old banker who suffered a cardiac arrest in June 2017. He never regained consciousness. His family and the doctors agreed that Mr Y would not want to be kept alive in a vegetative state and sought to challenge the rule that the court’s permission was required to withdraw treatment.

The Justices of Supreme Court ruled that it is not a requirement of Human Rights law for the court to be consulted on every decision of this kind. They were keen to stress this only applies where the doctors and family agree that treatment, specifically artificial nutrition or hydration, should be withdrawn. However the decision could have far reaching consequences for the families of those suffering from end of life care.

Importantly, Mr Y had not made any provision for what he would wish to happen if he were kept alive in a vegetative state. According to Solicitors for the Elderly, 65% of people wrongly believe their next of kin can make their medical and care decisions for them should they not be able to. In fact only medical professionals have the ability to make the final decision about your care based on what they believe to be in the best interests of the patient. They can make these decisions with or without the consent of relatives.

It is therefore extremely important that your wishes are recorded in a legally binding document to avoid any undue stress and confusion for your family. A recent poll revealed that 2 in 5 people would want their life support machine switched off if they were in a minimally conscious state – but would your loved ones know this?

One way to document your wishes is to prepare an Advance Decision (or Living Will as they are otherwise known). This allows a person to refuse specific medical treatment if in the future they have lost capacity to consent to it. This could include a wish not to be kept alive be artificial nutrition or hydration. If the advance decision is valid, medical professionals must follow it.

However the downside of making an Advance Decision is that it can be difficult to cover all possible treatments and circumstances that may arise. If the doctors decide that a situation has arisen which is not covered by the Advance Decision then they are not bound to follow it. This can limit its usefulness.

An alternative option is to create a Lasting Power of Attorney for Health and Welfare. This allows a person (the donor) to appoint one or more attorneys to make decisions regarding their healthcare, medical treatment and social care if they no longer have mental capacity. The attorneys can speak to the doctors on the donor’s behalf and make decisions which must be followed. This includes the ability to give or refuse consent to life sustaining treatment.

Within the Lasting Power of Attorney the donor can give guidance as to how they would want the attorneys to act. Overall the attorneys will have much more flexibility to assess the circumstances at the time of the medical treatment in question and act in the best interests of the donor.

To discuss either Advance Decisions or Lasting Powers of Attorney please contact the Private client team at any of our four offices.