Two recent cases highlighted the progress that Judges are making in clarifying the law relating to end-of-life care.
‘Best Interests’ can be to die
In 2016 the Court of Protection was asked to rule whether treatment could be withdrawn from Mrs. N so that she could die rather than continue to live without any degree of awareness until her ‘remorselessly progressive’ MS took her life. Mrs. N’s adult children gave strong evidence to the Court that their mother would rather die than live in the state she had endured over the last many years, and the Judge concluded:
“I am entirely satisfied that there is no prospect of her achieving a life that she would consider to be meaningful, worthwhile or dignified.”
Mr. Justice Hayden had agreed that Mrs. N no longer had the capacity to make this decision for herself, therefore it was for the Court to decide what was in her best interests. In doing so, it must take into account the likely prognosis but also the person’s past, present and future feelings, so far as these can be ascertained.
The Judge was persuaded that in Mrs. N’s circumstances she would definitely not wish her life to be prolonged, but he made clear this was a decision taken on the specific evidence in this case:
” There is an innate dignity in the life of a human being who is being cared for well, and who is free from pain. There will undoubtedly be people who for religious or cultural reasons or merely because it accords with the behavioural code by which they have lived their life prefer to, or think it morally right to, hold fast to life no matter how poor its quality or vestigial its nature. Their choice must be respected. But choice where rational, informed and un-coerced is the essence of autonomy. It follows that those who would not wish to live in this way must have their views respected too.”
Capacity is King
This case was followed by another headline case later that month, when C, reported to be an unconventional socialite who wished to reject life-sustaining treatment, was deemed by the court to have the capacity to make her own decisions and therefore entirely free to decide to reject healthcare that would probably save her life.
Widely reported in the press as a case suggesting that people with unusual lifestyles should be allowed the right to die, in fact the single issue addressed by the Judge was that of capacity. He noted C’s four marriages, affairs, and her “emphasis on money, material possessions and ‘living the high life’ ” but only as a way of understanding C’s unusual attitude to life.
Ultimately, the Judge decided that it had not been proved, on the balance of probabilities, that C did not understand her predicament or could not use and weigh the information relevant to her decision. She was therefore perfectly entitled to decline treatment.
In both these cases, the children of those whose lives were being discussed in court were all in agreement that their mothers should be allowed to die, and indeed N had clearly stated to her medical team at repeated intervals that she wished to die.
The Courts are making clear that individuals do indeed have the right to decline treatment, and that where they have no capacity to do so, it is possible for the Court to make a decision which takes account of what they would themselves have decided, were they capable of so doing.
Living Will or Advance Directive
In neither of these cases was there a formal ‘Living Will’ or Advance Directive under the Mental Capacity Act, giving clear expression to the person’s wishes at the time the document was made. Mr. Justice Hayden concluded that the possibility of making these documents was helpful in showing that
“the importance of the wishes and feelings of an incapacitated adult, communicated to the court via family or friends but with similar cogency and authenticity, are to be afforded no less significance than those of the capacitous.”
It seems likely that a properly drawn-up Advance Directive will assist an individual and his family greatly in proving his own wishes in such circumstances. Whilst there is no right to die, per se, the courts will respect an individual’s right to determine their treatment provided that they believe, on the balance of probabilities, that they have capacity to make that decision, regardless of whether or not it might be the decision of a reasonable man.
Detailed reasoning from the Judges is available: