Mental Capacity expert warns life support withdrawal ruling will open a can of worms

A leading expert in Mental Capacity law has warned that a landmark ruling this week which removes the requirement for a judge to decide whether nutrition should be withdrawn from patients in a hopeless vegetative state will open a can of worms.

John Lancaster, a Senior Solicitor Advocate at leading North Wales and Shropshire law firm GHP Legal, says everyone will have a different view depending on who they are and how they are involved in such a case.  It is likely that the ruling will be appealed to a higher Court.

Until this week, the decision to remove life support treatment from someone suffering a severe debilitating illness had to be made by a judge, taking into account the views of professionals and the patient’s family. This all changed, however, with the decision in a judgment of Mr Justice Jackson published on September 20th, whereby he ruled that a judge’s decision was only needed in cases where the patient’s family and doctors disagreed.

“As was the case before, there will be arguments raised, whoever gets to decide the patient’s fate,” says Mr Lancaster. “If it’s a Judge or doctors, the family complain they are excluded or disempowered.  The professionals are said to be ‘playing God’. 

“If it is the family who are to decide, their understandable emotional involvement may prevent them from letting go and making hard decisions when all reasonable hope is gone. Looking at the tortuous case of Charlie Gard, for example, it is hard to see now that the involvement of the Court and the Judge made the parents’ anguish any less.

“Now, as a result of this week’s judgement, pending any appeal, nutrition can be withdrawn without Court intervention if all agree. So yes, it reduces legal costs, but it means the decision lacks judicial oversight.  Also the patient will die through lack of nutrition. Some will say that is a step too far, whilst others will say it does not go far enough and euthanasia should also be allowed.

“And whilst all this is going on, of course, the poor patient on life support is, by virtue of their condition, unable to say what they want, although, rightly, the Mental Health Capacity Act requires consideration of the patient’s past wishes, feelings, beliefs and values. But of course this will only be relevant if the patient has someone who knows that and can convey it at the time.

“My view is that we haven’t heard the end of this and there will be an appeal on the ruling. In the meantime I would urge everyone making a Will to plan ahead for the unknown and also get a legally drawn up ‘living will’ that can validly provide for the refusal of life-sustaining treatment if that is what the person desires. Speaking for oneself when one can is the only sure way.”

(Article published 22.09.2017)