Withdrawal of Life Sustaining Treatment
There have been a couple of cases coming to Court recently regarding the withdrawal of life sustaining treatment. Court cases are always stressful and can be very expensive, so in recent cases, the question has been asked as to whether it is necessary to go to Court in every case. These kinds of cases arise where there is no attorney under a Lasting Power of Attorney, appointed to make decisions about life sustaining treatment.
There is practise direction (legal guidance for the Court process), that indicates that it should, however this practise direction is being withdrawn in December and not replaced, which effectively means it’s being deleted!
The Court considered lots of things and made it clear that every decision to withdraw life sustaining treatment is always unique and case specific. They also said that every person is entitled to the rights under the European Human Rights Convention and in particular they are entitled to Article 2 (right to life) and Article 6 (right to a fair trial).
One of the first cases of its kind was the case of Anthony Bland, who survived the Hillsborough disaster, but in a permanently vegetative state. The NHS Trust caring for him applied to the Court for permission to withdraw life sustaining treatment in 1993, the order was granted, as it was decided in the circumstances it was in his best interests to do so. At that time, the Court’s view was that all such cases should be considered by the Court. As time has gone on and medical advances have improved, there are more very poorly people being kept artificially alive with the use of medicine and in particular artificial nutrition and hydration.
So what has the Court decided?
It is still an individual decision relevant to the circumstances of each case. However the Court has also decided that it is not always necessary to apply to the Court for a decision to withdraw life sustaining treatment where all parties are in agreement, including the family and all clinical team treating the patient. They must be sure that there is no prospect of recovery and that it is in their best interests to withdraw the treatment. They should also attempt to find out what their wishes would have been, had they been able to express them. There should also be no doubts or concerns about the decision, otherwise, the case should be brought to Court.
So what does this mean?
That life sustaining treatment might be withdrawn without having to go to Court, as long as there are no concerns about the decision and everyone is in agreement. However these recent cases are not guarantees that the matter will not be brought to Court, just that it might not be!
The other key point is that it is best practise, a lot easier and less stressful to grant a Lasting Power of Attorney for Health and Welfare, appointing someone you trust, who would be able to make this decision on your behalf. One of the cases was for a 52 year old man, who had a cardiac arrest, it was not possible to resuscitate him for 10 minutes, leading to permanent brain damage and he would need care for the rest of his life. As long as your proposed attorneys are over the age of 18, there is no time when it is too early to do this, then they can be stored until or if they are every needed.
If you need help or advice regarding LPAs, please contact me.