Advance decisions, Health & Welfare LPAs and the Court of Protection

 In Comment, Gill's Blog

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Frances Gibb ran an article in the Times on 26 October 2016 about the revelation by Mr Justice Baker that all cases involving the withdrawal of artificial nutrition and hydration (ANH) should come before the Court, even if the patient has made an Advance Decision or appointed an attorney to make such a decision.

Mr Justice Baker was addressing a conference in Oxford on 11 October 2016. It is a speech which is worth reading and can be found at https://www.judiciary.gov.uk/wp-content/uploads/2016/10/mr-justice-baker-shrieval-lecture-11102016.pdf.  Whilst the Judge confirms the view of Peter Jackson J when he said:

“anyone capable of making decision has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent, any invasion of the body will be a criminal assault.”

It is recognised that not all people have capacity to give their consent at the relevant time. As an aside the Guardian on 27 October contains a piece on the need for consultants to make a proper attempt to explain the options to those with capacity and not express their preferred procedure before a patient makes their own choice as to whether or not consent should be given. At present, the argument is, obtaining consent to an operation is given little priority and is seen as a tick box exercise at the last minute.

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It was perhaps the need to ensure autonomy for an individual that resulted in ss 24-26 Mental Capacity Act 2005 (MCA 2005) which permits Advance Decisions to be made under strict formalities if life-sustaining treatment is to be withdrawn. Similarly, it is possible for a Personal Welfare LPA to be made which under s.9 MCA 2005 permits the donor to appoint someone to make decisions affecting the donor’s welfare, including, if chosen by the donor, the ability to make decisions about life-sustaining treatment.

Judge Baker in his speech says:

“…some doubt has been expressed as to whether either a advance decision or the power vested in the donee of a LPA extends to decisions concerning a proposal to withhold or withdraw ANH. This is because of the terms of the relevant Practice Direction supplementing the rules governing application relating to serious medical treatment.”

I suspect this might come as a surprise to many practitioners, myself included. The relevant Practice Direction appears to be Practice Direction 9E- Applications relating to serious medical treatment which can be found here – https://www.judiciary.gov.uk/publications/practice-direction-9e-applications-relating-to-serious-medical-treatment-effective-from-1-july-2015/

Whilst this Practice Direction does indeed require cases involving ANH to be brought before the Court nowhere in the Practice Direction does it says this is required even where an advance decision has been properly made or there is an attorney authorised to make such a decision rather than the Court.

It is understood that decisions made about the withdrawal of ANH in the cold light of day when the patient is fit and well may not turn out to be their wish or in their best interests at the crucial moment when a decision to withdraw or maintain ANH is needed. However, what of autonomy if advance decisions properly prepared effectively have no more effect than to provide evidence of the patient’s wishes where the actual decision will be made by the courts?

As you might expect former Lord Chancellor Lord Falconer has already expressed his view about the above to Channel 4:

“My clear view is that what Parliament intended was that, subject to strict safeguards, as long as the person meant it, then advance directives should be given effect. The Act does not envisage a judicial input.”

I am not sure where the uncertainty which Judge Baker refers to has come from but it is important for practitioners to be aware of this debate. We have a duty to inform clients who want to make advance decisions or appoint attorneys to make life sustaining or withdrawal of ANH decisions that for now it would appear that ALL cases where withdrawal of ANH is involved must be the subject of a court order.

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