UK Judges will no longer be required to rule on removing of life support. At the present time Judges have to be consulted when doctors or relatives of patients in a vegetative or minimally conscious state agree that life support treatment should end.
A ruling in the Supreme Court earlier this year could now affect the care of thousands of people who are kept alive in nursing homes and hospital as a consequence of medical intervention.
The case arose before the Court following a legal challenge by the Official Solicitor which was brought in the face of opposition from the family and doctors of a man who was not identified formerly in Court papers so as to protect his privacy.
The case has accelerated through the Courts rapidly because of the individual’s condition, but ultimately the individual died before the case was heard. The Court nevertheless decided to continue to hear the legal arguments because it was an important issue that the Court considered ought to be resolved.
The Court were given background detail in respect of the matter. The man was reported to be extremely active prior to his suffering a cardiac arrest, had not left any living Will or instruction on what should happen in the event of sudden illness. It was deemed highly improbable that he would regain his consciousness. His wife, children and siblings and doctors all agreed that he would not wish to live in a vegetative state or minimally conscious with significant disability.
The Barrister for the Official Solicitor argued that common law or Human Rights law requires that every case involving taking away or withdrawing of life sustaining treatment has to be the subject of a best interest application, irrespective of whether there is a dispute between family and doctors.
Until the decision in this case, families previously had to submit themselves to a lengthy and expensive proceedings with the Court of Protection to consider the cases of those who are unable to represent themselves.
The original application had been brought by the unnamed NHS Trust who had been providing treatment for the man.
Lady Black giving Judgment considered that:
“having looked at the issue in its wide context as well as from a narrow legal perspective I do not consider that it has been established that the common law or the European Convention of Human Rights gives rise to the mandatory requirement for which the Official Solicitor intends to involve the Court to decide upon the best interest of every patient with a prolonged disorder of consciousness before clinically assisted nutrition and hydration can be withdrawn”.
Lady Black went on to comment that if it is a finely balanced question or there is a difference of medical opinion or lack of agreement as to the proposed course for those with an interest, then it is quite proper to make a Court application.
In other words in the event of doubt, it is right and proper to make an application to the Court but if there is a consensus of agreement the decision the Court recognises is that sometimes sadly it is in someone’s best interest to withdraw treatment for the individual.
The case also highlights the importance of recording wishes of round refusal of treatment in a legally binding way which would have left doctors duty bound to follow the wishes without the need for a Court case.
In a 1993 case involving Anthony Bland, a Hillsborough survivor who was left in a persistent vegetative state, the Court established that it is legal to stop providing treatment, including food and water, if it is deemed to be in the patient’s best interest.
If you require assistance in connection with lasting power of attorney for health and welfare or finance and property issues or advice in respect of living Wills, Clarkson Hirst would be happy to assist in connection with the same.