Court of Protection – Protection for Whom?

On the 1 May 2012 a Court of Protection judge ruled that the life support machine of a man suffering from motor neurones disease could be switched off in order to fulfil his wish of being “allowed peacefully to end his life” as conveyed to the Court by his wife.

The gentleman known as XB had suffered from the debilitating disease for 10 years and the Court of Protection authorised the creation of a Living Will by blinking his consent to his wife.  These instructions were witnessed by a doctor, a social worker and a carer.

Living Wills or Advanced Decisions allow people to give instructions as to treatment they DO NOT want to receive in the future.  They do not allow people to indicate treatment they would like to receive, only that which they do not.

The effect of the Advanced Decision will be that the person’s decision, made at a time when they had full mental capacity, can be carried out when they no longer have the capacity to refuse treatment in person.

Anybody over the age of eighteen years with sufficient mental capacity can make an Advanced Decision and they can amend or withdraw the decision at any time whilst they still retain mental capacity.  We would also recommend that they are kept under regular review and should be registered with a GP or other medical professional.

There is no specific requirement for the Advanced Decision to be in writing but any decision relating to the decision to refuse life sustaining treatment must be in writing and signed by the person.

In the instance of XB, the gentleman conveyed his request for the life support machine to be turned off by blinking, not in writing.

The Court of Protection will not normally be involved unless there are concerns over the existence or validity of an Advanced Decision and the doctors can take necessary steps to prevent death until matters have been resolved.

In 1993, the Courts intervened and ruled that Hillsborough victim Tony Bland, could have the food and water tubes which were feeding him removed and therefore, be allowed to die.  In 2007 a suicide victim presented doctors with a piece of paper stating that it was her Advanced Decision and refused treatment.  The doctors were concerned that if they acted contrary to her wishes (which in this instance she was able to convey to the doctors personally) that they could be charged with assault and as a result, adhered to her wishes.

Although the government included specific clauses in the Mental Capacity Act to ensure  it was clear that “nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the suicide Act 1961”, opponents to the Mental Capacity Act and anti-euthanasia groups have criticised the Courts decisions stating that “It is another move towards making it easy to get rid of people”.

For further information or an initial consultation please call Kirsten Bradley, a Wills, Probate, Tax and Trusts Solicitor at Forbes Solicitors on freephone 0800 975 2463 or contact our Solicitors online today.

This entry was posted in Wills, Tax, Trusts and Probate.

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