The decisions surrounding the termination of life support treatment are incredibly emotive and difficult for everyone involved.
The Supreme Court decision in NHS Trust v Y highlighted the importance of advance decisions in ensuring that a person’s wishes are respected where they are no longer able to communicate their wishes. It was determined in this case that where there are prolonged disorders of consciousness (PDOC), that life support can be withdrawn without the need to make a court application, if the relevant procedures have been followed.
Here we look at the implications of this decision and the importance of advance decisions.
The decision in NHS Trust v Y
Background
The case of Y involved a man in his 50s who suffered a cardiac arrest. This resulted in him suffering severe cerebral hypoxia and extensive brain damage. He never regained consciousness after the cardiac arrest.
He needed constant assisted nutrition and hydration via a feeding tube to keep him alive. It was determined that he was suffering from PDOC and even if he did regain consciousness, he would have severe cognitive and physical disabilities. A second opinion agreed he had no prospect of improvement.
The family believed that he would not want to be kept alive in these circumstances and it was agreed by both the family and the medical team that he should no longer receive clinically assisted nutrition and hydration (CANH) to keep him alive.
An application was made to the High Court for a declaration stating that endorsement was not required from the Court of Protection. The High Court ruled that approval was not required where there was an agreement.
The Official Solicitor
The Official Solicitor’s role in these situations is to protect the patient’s interests and make decisions on their behalf if they cannot do this themselves. The Official Solicitor was asked to act as Y’s litigation friend and in this capacity, he appealed the case. Permission was granted for the case to proceed to the Supreme Court.
Unfortunately, Y died before the case was heard. However, the Supreme Court decided that the case should continue due to how important the issues were.
The Official Solicitor’s position was that every case needed approval to protect the vulnerable position of the patient lacking in capacity, and that this was protected by the common law and the European Convention on Human Rights (ECHR). The respondents disagreed, stating that there was not a requirement in either the common law or under the ECHR for court approval to be sought in every case.
The Supreme Court’s ruling
The Supreme Court found that it had not been established in either the common law or under ECHR that there is a mandatory requirement to involve the courts in every case. Lady Black, in her ruling, stated that life-supporting treatment, including CANH and ventilation, can be withdrawn without applying to the court in the following circumstances:
- there is an agreement between all concerned on what is best for the patient;
- the relevant provisions of the Mental Health Act 2005 have been followed;
- the relevant guidance of the British Medical Association, General Medical Council and the Royal College of Physicians has been followed, all of which safeguard the patient’s best interests.
However, Lady Black did give the following exceptions that “if, at the end of the 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”.
In her ruling, Lady Black stated that the Court should not be involved in these decisions where it is not necessary. Loved ones will already be facing a very emotional and difficult time and she recognised that unnecessary court proceedings would be distracting for them when instead they should be spending the time with their loved one in their final days.
How can an advance decision help?
An advance decision to refuse treatment (or a Living Will) is a document used for people to record their wishes relating to medical treatment and what they wish to refuse if they no longer have the capacity to communicate their views. So long as these documents are correctly created, they are legally binding and take immediate effect from when they are signed and witnessed. This means that a legally valid advance decision has to be followed by healthcare professionals, even if the family of the patient disagrees.
Where a patient has a valid advanced decision in place that details their wishes to refuse life support treatment then there is never any need to go to court. The fact that the wishes of the patient are legally documented means that the medical professionals can follow these wishes. This shows how important these documents are to have in place and the need to take expert legal advice on making sure that they are drawn up properly to reflect the patient’s wishes if they are needed.
Contact our Advance Decision (Living Wills) Solicitors, London
This ruling shows how important it is to legally document your wishes when you have the relevant mental capacity, to protect yourself and your loved ones in the future. At Lewis Nedas Law, we help our clients create advanced decisions tailored to their specific needs and desires. Without advance decisions, it is up to your family members to make these incredibly difficult decisions. Consult our experienced Advance Decision Lawyers to create your advance decision and protect your loved ones from conflict and distress.
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