On the 30th July this year, The Supreme Court made a landmark ruling that, where experts and loved ones agree, there is now no longer a need for court approval to withdraw CANH (Clinically Assisted Nutrition and Hydration ) for patients in a permanent vegetative state.
Before the ruling, doctors and family members would need to seek confirmation from The Court of Protection to undertake this end of life care particularly where the patient was unlikely to regain consciousness.
The question decided by the court was “not about whether it is in the best interests of a patient to have CANH withdrawn. It is about who decides the question.” (Richard Gordan QC for the Official Solicitor)
The patient Mr Y, a 52 year old Financial Analyst had been in a vegetative state since June 2017 following a heart attack and the effects of severe brain damage- a “prolonged disorder for consciousness” after suffering from the outcome of a cardiac arrest.
Sadly Mr Y died in December, but the case resumed because of the importance of the legal issues raised.
The Judgment of the Supreme Court was that providing the Provisions of The Mental Capacity Act 2005 are adhered to and that the best interests of the patient are agreed, “the patient may be treated in accordance with that agreement without application to the court” (Lady Justice Black)
Aside from the decision to administer end of life treatment, where a person lacks mental capacity or is unconscious for an indefinite period, court permission still needs to be obtained to make legal decisions on behalf of the person. Decisions made can be financial ones, ones relating to a persons property or alternatively on the person’s Health and Welfare; in particular choices concerning doctors, social care, care homes and medication.
The process of obtaining a court of protection order for these decisions to be made can be both a costly and lengthy process, often causing undue stress on the families involved.
It is helpful to know that where someone does have mental capacity, they can create a Lasting Power of Attorney and appoint a trusted family member/friend to make decisions on their behalf should they become unable to do so.
Lasting Power of Attorney documents are detailed documents that can be tailored to suit the client’s needs. Clients have the ability to appoint primary attorneys and replacements. Where necessary, you can include preferences and restrictions within the Power of Attorney document, which can limit the acts that an attorney can carry out on your behalf.
By eliminating the need to seek court permission to remove end of life treatment, the ruling of The Supreme Court in Mr Y’s case will no doubt have an effect on future patients. It is useful to note that where a Lasting Power of Attorney has already been created by a patient, Doctors can automatically consult with and take the decisions of appointed loved ones/family members on end of life care in the first instance. The Lasting Power of Attorney can be used for decisions concerning end of life treatment as well as for instance, operations, medication and treatment.