The High Court has handed down a landmark judgement in a case concerning the withdrawal of clinically assisted nutrition and hydration (CANH) from a woman reaching the end stages of Huntington’s disease – an inherited neurological condition that is progressive, incurable and ultimately fatal.
The woman’s mother asked the Court of Protection to determine whether court approval was necessary when both family and doctors agreed that the withdrawal of CANH was in her daughter’s best interests – even though it was likely to hasten her death.
The emotion surrounding the case was palpable. Her mother said: “I love her with all my heart and have spent my entire life caring for her. I have been so close to her and feel sure that I know her inside and out. She would have hated to be in the position she is in now…. This is not the life she would have wanted to continue living.” The woman’s clinician recommended that “nutrition and hydration” be withdrawn “as sustaining hydration without nutrition may prolong her general suffering and any additional suffering from hunger, without any particular benefit”.
Mr Justice Peter Jackson’s decided that no court application was needed to withdraw CANH for patients in a persistent vegetative or minimally concious state. However, he stressed that: “The court is always available where there is disagreement, or where it is felt for some other reason that an application should be made” although he considered that such applications would be “rare”.
Buckles Private Client partner Karl Dembicki said: “The judgement raises ethical questions surrounding the withdrawal or refusal of medical treatment at the end of life – and the process required to make that decision. Many people view the provision of food and fluid by tube as part of basic care which ought to be rarely withdrawn. English law views artificial hydration and nutrition as a medical treatment and therefore something that can be withheld or withdrawn if it is in the patient’s best interests. The judgement clarifies that the court does not need to grant approval for the withdrawal of CANH when a person is in a persistent vegetative or minimally conscious state – providing the patient’s family and clinicians agree that it is in their best interests. Some may welcome that as the removal of a bureaucratic and intrusive procedure at an emotionally sensitive time, others will view it as an erosion of an important safeguard.”
Fortunately, the Mental Capacity Act 2005 ensures that people are given a rightful say in their own decisions when they may be unable to make such a decision themselves through either a Lasting Power of Attorney for Health and Welfare (LPA) or an Advance Decision previously called a Living Will.
An LPA for Health and Welfare is a legal document authorising people known as attorneys to make decisions regarding your medical care and treatment in your best interests, should you lack mental capacity. You can authorise your attorneys to make decisions about refusing or withdrawing life-sustaining treatment which includes CANH. It is a very powerful document and therefore vital that you take advice from a solicitor so that you fully understand the authority you are giving to your attorneys. We can help you provide guidance to your attorneys so that your wishes are clearly known. Karl believes that a well drafted LPA for Health and Welfare helps to strike a happy balance between cherishing life and accepting the inevitability of death and provides valuable assistance to attorneys, allowing them to make known your wishes when you can’t.
An Advance Decision to refuse medical treatment is a legal document which may contain a statement to refuse medical treatment thought necessary to sustain life. To be valid it needs to be in writing, signed and witnessed. It must also contain the statement that the decision is to stand “even if life is at risk”. However, you should be aware that if a person creates the document when they lack mental capacity, or the decisions made are not applicable to the situation, then it does not bind the healthcare team.
Buckles has vast experience in drafting Wills and Lasting Power of Attorney documents. We can supply a free Advance Directive (also known as a Living Will) on request. Our team also includes a Head of Court Protection who can help with related matters.
