Life and Death Decisions I want to look at the various legal issues which can arise when people are faced with life and death decisions. Improvements in health care and wealth of society means that we are living longer, but may suffer mental or physica
• According to the ONS, the average life expectancy has risen from just 31 in the early 20th C t0 in 2010 78 years for men and 82 for women.
• According to the Alzheimer’s Society, there are currently 800,000 people living with dementia in the UK and it is estimated that this will increase to over 1m people by 2021
• Mortality rates in England fell in 2007-2009 by more than 22% in men and almost 18% in women.
We will look at decisions that are not legal in this country, those which are legal and the grey areas which have lately developed in between. We will look at how these have developed over the last fifty years and where we are now.
What is and isn’t legal
Firstly what is illegal - clearly it is not legal to take someone’s life – that is murder and a crime.
However, it is not illegal to commit suicide, but it is illegal to assist another in taking their own life.
It is possible to refuse medical treatment or life sustaining treatment, but this decision must be made with full mental capacity. Those who have lost mental capacity do not have this choice.
This situation has provoked the promotion of the debate around euthanasia and assisted suicide, both of which would enable a third party to take steps to end someone’s life in certain circumstances. Some who have chosen this path travel to countries where assisted suicide is legal – such as Switzerland.
Others have challenged the position in the Courts. The Court of Protection deals with issues relating to mental capacity and they have recently opened their proceedings to reporting so more cases are appearing in the press.
Other cases which come before the Royal Courts of Justice also now regularly appear in the press. There is the recent case of Bradford’s Debbie Purdy who has a terminal degenerative disease and she wants her husband to be able to take her life at a time when she may no longer have the mental capacity to do so. Whilst her case was not successful, the Director of Public Prosecutions has revised guidelines so that a prosecution in these circumstances would not be likely.
Other cases that have come before the Courts relate to the decision to end a life where the patient is in a coma and will not recover. If there is a difference of opinion between the family and the medical professionals, then the Courts take the final decision in these tragic cases.
I expect that most of us are familiar with the case being heard in the RCJ brought by Tony Nicklinson who is fighting for the right to end his life. Tony is paralysed from the neck down following a stroke in 2005 and as a sufferer of “locked in syndrome” he has full mental capacity but can only communicate via a computer which he operates with his eyes.
Tony is so severely disabled that he cannot end his own life and he needs somebody to do it for him. He is seeking to challenge the current law against murder and establish a defence of “necessity” to murder in limited circumstances. The Government is resisting his case on the basis that such a fundamental change in the law should not be made by the 3 Judges presiding over his case but by Parliament.
Anyone who witched Dispatches on Monday will have been moved by his plight and it was interesting to see how matters proceed in these circumstances in the Netherlands where in certain limited circumstances doctors can end the life of a person in Tony’s position.
There has been a call for there to be a power to say in advance what medical treatment can or cannot be given, if you are not able to communicate your decision at that time – this may be because of a physical condition (like the locked in syndrome) – or because mental capacity has been lost.
How is it possible to make your views known – two possibilities – the Advance Medical Decision / Advance Directive or the Lasting Power of Attorney for Health and Welfare.
A Living Will (or the Advance Directive or the Advance Medical Decision) sets out what a person wants by way of medical treatment in the future if they are not able to communicate this. This rose in popularity in the USA, perhaps because of the large number of people with AIDs in the early 1980’s [?] who wanted to actively manage their end of life decision. Indeed, one of the early proponents of Living Wills was the Terence Higgins Trust which supported AIDs victims in this country.
Information on this can be obtained from the Terence Higgins Trust or from the organisation Compassion in Dying.
These did not have any legal status until the Mental Capacity Act was passed in 2005 which came into effect in October 2007. This Act now provides that an Advance Medical Decision can be made by a person (P) in the following circumstances:
1. P is over the age of 18:
2. P has the mental capacity to make that decision:
3. P must be acting under his own will and not be forced by others to make the decision:
4. The AMD says what treatment P gives consent for (this does not need to be in medical language, as long as it is clear)
5. The AMD clearly expresses the circumstances in which P wants to refuse treatment:
6. If the AMD contains instructions concerning life sustaining treatment, it is in writing, signed by P and his signature is witnessed by an independent witness.
If all these requirements are satisfied, then the healthcare professionals must follow the decision in the AMD if it applies to those particular circumstances otherwise they may face criminal prosecution.
The Act does give protection to the healthcare professionals in certain circumstances. A healthcare professional should, before they can apply a decision in an AMD check:
• The AMD exists
• That it is valid and
• It is applicable in the current circumstances.
And they are protected if they stop treatment based on these reasonable beliefs. If for instance, they believe that the person’s views might have changed if they had the current circumstances and information before them, they can continue treatment whilst the Court establishes what should be done. They will base that decision on the over-riding principle of the MCA that the decision must be made in the best interests of the patient. There are guidelines in the Code of Practice to the Mental Capacity Act 2005.
There are limitations to the AMD:
1. It cannot be used to request a specific treatment to be given:
2. It cannot be used to request a procedure that is against the law (for instance, to commit suicide):
3. If there is evidence that P has changed their mind, then it may be ignored. It is important to review any such decision regularly and to ensure that views are clearly expressed at that time.
How do you make an AMD?
These must be in writing if they deal with life sustaining treatment – but for clarity it is better that all such decisions are evidenced in writing, provided they are reviewed on a regular basis.
There are no set formalities required but it is suggested that
- state what treatment is to be refused
- be as precise as possible
- set out the circumstances when the refusal should apply – giving as much detail as possible
Whilst detail is preferable, a general decision refusing all treatment may be valid if P explains their reasons for that decision such as religious beliefs.
The Code of Practice to the MCA recommends the following information contained in the AMD:
• P’s full details including address and date of birth
• Any distinguishing features so that healthcare professionals can identify the person
• The name and address of the GP and whether they have a copy of the AMD
• A statement that the AMD should be used only if P lacks mental capacity
• Clear statement of the decision, the treatment to be refused, and the circumstances when it would apply
• The date that the document was written and signed
• The P’s signature (or the signature of someone P has asked to sign on their behalf if they are not able to sign)
• The signature of the witness – it is recommended that the witness add their address in case they have to be consulted later on.
If there is likely to be any questions raised about P’s mental capacity to sign the AMD, it is recommended that the witness is a healthcare professional who can later confirm that there was capacity to sign.
This is something a lawyer can prepare but in addition there should be input from healthcare professionals. Looking at the details required, this can require some medical input which a lawyer would not be able to give, but they can help with any issues concerning mental capacity.
Once completed, copies should be placed with patient’s records at the hospital or GP as well as to family and legal advisers.
H & W LPA
The MCA also introduced the Lasting Power of Attorney. This replaced the Enduring Power of Attorney document that dealt only with property and affairs. It is possible to make two different forms, one which deals with property and affairs and the other which deals with health and welfare – and it is in the health and welfare LPA that it is possible to give someone else the authority to make decisions regarding life sustaining treatment.
The wording that is included in the LPA is as follows:
I want to/do not want to give my attorneys authority to give or refuse consent to life sustaining treatment on my behalf
This is a wide authority and would replace any AMD signed earlier so far as it relates to life sustaining treatment decisions.
The Health and Welfare LPA will also allow attorneys to make decisions about the donor’s care including where they should live and who should take care of them. They are not so commonly made as the property and affairs LPA but should be considered as the need for those types of decisions can only increase.
There has not been much in the way of challenges in the Court involving these documents as yet. Questions of mental capacity will be key. Prior to the MCA, there was no legal definition of mental capacity, it was covered in case law. Based on that case law, the MCA has attempted to remedy that by setting out the guiding principles when assessing capacity and making those assessments decision specific. That means that the test for capacity for say getting married is different for buying life insurance. Section 2 confirms that
‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’
These issues may become relevant if for example, someone who persistently tried taking their own life signed an AMD saying that they want to refuse life sustaining treatment – did they have sufficient capacity?
What if P comes under pressure from an impecunious son to sign an AMD which he will hope will hasten her demise and his inheritance. Sadly these things do happen and the law may be the only way of protection.
But the law will uphold the right to decide – a person will not be treated as unable to make a decision merely because he makes an unwise decision. In practice, this is common and we must protect the individual’s right to make their own decision, even if we don’t agree with that decision.
To conclude then, the law is changing to accommodate and take account of society’s changing health needs and of public opinion. It is early days to judge whether the steps taken will provide the required balance of the freedom for the individual to choose against protection against misuse of the powers given.
We now advise our clients to make sure that they make and review on a regular basis their Will, the LPA for Property and Affairs and the LPA for Health and Welfare.
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