Life sustaining treatment: the importance of a Lasting Power of Attorney

31 July 2018

On 29th July 2018, the Supreme Court ruled that families and doctors can agree to end the life sustaining care of patients in a persistent vegetative state without Court permission.

Until now, families and doctors have had to seek permission from the Court of Protection to remove feeding tubes from someone in a persistent vegetative state. This was a costly and time consuming process, with many cases taking months or even years to be resolved.

The Supreme Court heard the case after a man in his 50s,  Mr Y, suffered a heart attack, resulting in severe brain damage. He was left unresponsive as a result, with little chance of recovery. Mr Y had not left any written instructions as to what should happen to him in the case of sudden illness. Mr Y’s family and his doctor agreed that it would be in his best interests for his feeding tube to be removed to allow him to die. The High Court were asked to declare that it was not necessary to apply to the Court of Protection for a decision when the family and the doctor agree that it is in the patient’s best interests. The High Court agreed, but the decision was appealed. Mr Y died while the case was on-going, but the case continued and a ruling was made upholding the High Court’s decision.

Understandably, this decision divides opinion.  Some will consider this to be humane, empowering families to make the right decision for their loved ones; others will see it as a threat to the legal safeguarding of vulnerable people.

Some, such as Dr Saunders from anti-assisted dying group Care Not Killing, are disappointed by the Supreme Court’s ruling. They fear that a layer of protection for vulnerable people has been removed. Decisions could be made about the patient’s treatment for the wrong reasons, such as for financial concerns over the on-going cost of care. There are fears that people could effectively be starved and dehydrated to death.

Conversely, the decision will provide comfort to some families. There have been numerous instances of families fighting for the withdrawal of life sustaining care, when they know that their loved one would not have wanted to be kept alive. For these families, having to go to Court and say that their loved one ought to be allowed to die adds an extra layer of stress and discomfort to what is already an incredibly difficult time.

In light of the Supreme Court’s ruling, it is even more important that we make our wishes clear regarding life sustaining treatment, while we still can. Whilst it may be an uncomfortable conversation to have, it is worth speaking to your close family to make sure they know what you would want if you were unable to communicate your wishes.

Lasting Powers of Attorney (LPAs) let you choose who should make decisions on your behalf if you lose the mental capacity to do so yourself (your ‘attorneys’). Attorneys under a Health and Care LPA can make decisions relating to where you live, what you eat and ultimately, life sustaining treatment. You can include specific wishes on these points in your LPA.

Who you appoint as attorneys in your LPA is key. One of the greatest safeguards of all is appointing people you trust completely to make decisions on your behalf.

The Supreme Court decision does not change the fact that Court permission should still be sought to withdraw treatment where there is no record of the patient’s wishes and there is a disagreement over the patient’s best interests. By preparing a Health and Care LPA, you will add clarity to the situation at a time when your family need to make some difficult decisions. You will have the peace of mind of knowing that you did what you could to make your wishes known to your loved ones.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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