31 July 2018 by

Removing life-support – who decides?

On Monday the Supreme Court ruled that an application to the Court may no longer be needed for an order to withdraw life-sustaining treatment for a person with a ‘prolonged disorder of consciousness’ (for example where the patient is in a post-vegetative state).

What happened?

Mr Y – who was apparently in good health and led an active life – suffered a cardiac arrest and lost consciousness: it was deemed highly unlikely that he would ever regain consciousness.

Mr Y had not made a Health and Welfare Lasting Power of Attorney (“LPA”), or provided any instructions on what his wishes were if he were to become unwell and unable to make decisions for himself (aka a “Living Will”).

Without such documents in place, the usual route would have been for the family and doctors to apply to the Court of Protection (which considers cases where a person is unable to act for themselves) for an order allowing them to withdraw Mr Y’s treatment. Before this case, such an application had to be made, regardless of whether the family and medical professionals were in agreement that withdrawing treatment was in the patient’s best interests.

Can my relative rely on this to make decisions on my behalf?

Although since Monday it would appear that your relatives may be able to make such decisions without the need to make a Court application, an application would be still be needed where:

• the doctors/medical professionals and/or the family are not all in agreement; or
• a third party objects.

Best practice

There can be no guarantee that an order would not still be needed – none of us know what might happen to us or what our relatives might decide is best for us and whether their wishes might contradict those of the medical professionals. A Court application is costly and can take a number of months, during which the patient and the patient’s relatives may experience prolonged suffering. In addition the Court’s decision may also not reflect the patient’s wishes.

Is it therefore really worth leaving decisions to others, when you could have specified your wishes in advance?

Best practice must still be to have an LPA in place. The importance of an LPA should not be underestimated: had Mr Y had one in place, which granted his attorneys authority to make decisions about life sustaining treatment on his behalf, the matter would have been concluded far sooner.

A Living Will also has its benefits; however an LPA is far more comprehensive: for example, you can also grant attorneys authority to make decisions as to your long-term care.

There is also a Property and Financial Affairs LPA, under which you can grant attorneys the authority to manage your financial affairs.

Not only are LPAs a benefit to the person making them, but they also make it easier to manage that person’s affairs without the need to apply to Court each time.

It is better to prepare for the potential eventuality regardless of your age (Mr Y was only 52) or current health.

If you would like to discuss making an LPA, please contact someone else from our Wills and Probate team.  You may also like to read the article in the Guardian which includes insight from our very own Michael Culver. Michael is on the panel of the Court of Protection, one of only a few court appointed deputies and on the board of The Association of Lifetime Lawyers. Please click here

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