The Supreme Court has ruled that legal permission will no longer be required in order to withdraw treatment from patients in a permanent vegetative state.
The court held that when families and doctors are in agreement, medical staff will be able to remove tubes that provide life-sustaining food and liquids to patients in a vegetative state without having to apply to the Court of Protection, ultimately making it easier to allow such patients to die.
Previously the Court of Protection had to rule on cases but the process could often take months or even years to come to a conclusion, a delay that not only cost health authorities around £50,000 in legal fees but also brought on grief and immeasurable stress the families involved. The judgment certainly allows both agreeing families and medical professionals avoid these emotive, expensive and lengthy court proceedings.
The ruling could impact on thousands of families as there are roughly 1,500 new cases each year in England and Wales.
Unsurprisingly, the ruling has divided opinion. Some of those who have previously faced the court process say that the ruling would help families coping with such a tragic and painful situation; however, anti-assisted dying campaigners believe that vegetative patients are “effectively going to be starved and dehydrated to death.”
Although the ruling brings some clarity to the law, there remain some unanswered questions.
The judgment is not so clear on whether tacit agreement by the family is sufficient. A question remains as to whether it would be sufficient for the family “not to oppose” to the decision to remove food and liquid or whether it will be necessary for them to actively agree. Another apparent issue is that family members may feel pressured into agreeing to terminate treatment in order to avoid legal action but may not be entirely content with their decision.
Giving families more control over the treatment of their loved ones may be comforting for some, but for others it could be perceived as a crippling onus which could lead to long lasting feelings of guilt at what would already be a difficult time. The emotional stress on family members and their consequent ability to make fully informed decisions cannot be taken for granted.
In a similar vein, it is to be hoped that measures will be implemented to ensure that families understand the nature of their loved ones condition and that doctors and medical staff have a degree of certainty regarding diagnoses made.
Director of Public Law and Court of Protection at Duncan Lewis, Alex Peebles points out;
“There may be hard cases where family members feel pressed into agreeing to terminate treatment without necessarily agreeing that their family member is in a hopeless situation – they may have lingering doubts about whether the diagnosis is actually correct and these fears might, in many cases, be ameliorated if the matter were litigated because this process would invariably require additional expert evidence. Thus, taking the case to court ensures that the family members and the court would be sure to receive an expert “second opinion” about their relative’s condition”.
Further difficulty might arise in cases of potential clashes in religious and/or moral views between patients and their families, something that already causes difficulties in existing matters. The touchstone of best interests’ decision making is that the patient’s wishes and feelings are taking into account. Family members may feel conflicted if they feel that their relative had strong religious or philosophical views against withdrawing food and water that they do not necessarily share. It is to be hoped that in such situations medical practitioners will remain sensitive to the harrowing situation families will find themselves in and should not cause further suffering to those going through an extremely difficult time.
Alex Peebles is a Director of Public Law and Court of Protection at Duncan Lewis. He has a broad range of experience in handling complex cases in the High Court, the Court of Appeal and the European Court of Human Rights in issues including Commercial, Social Care and Environment Judicial Review, Discriminatory matter relating to the Equality Act, Data Protection and Information law, Disputes in the Court of Protection and Human Rights Claims and Inquests.
For expert advice, contact Alex on 020 3114 1218 or email him at email@example.com.
Duncan Lewis Court of Protection Department
Duncan Lewis' Court of Protection Department assists individuals in both publicly and privately funded cases from offices across London and throughout the UK. The department is recommended by the independent legal directory, Legal 500, as a leading practice in cases that overlap mental health and capacity, and deprivation of liberty safeguards. The firm is also applauded for its specialism in judicial review claimant matters and higher courts work.
For more information about our Court of Protection services, please contact Duncan Lewis Solicitors on 0333 772 0409.