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Legal opinion throws status of living wills of patients in vegetative state into doubt

BMJ 2016; 355 doi: https://doi.org/10.1136/bmj.i5875 (Published 01 November 2016) Cite this as: BMJ 2016;355:i5875
  1. Clare Dyer
  1. The BMJ

A legal provision that obliges doctors to honour a patient’s “living will” refusing artificial nutrition and hydration seems to conflict with a Court of Protection practice direction stating that all cases concerning the withdrawal of life sustaining treatment from patients in a vegetative or minimally conscious state should go to court, a senior judge has pointed out.1

The Mental Capacity Act 2005 provides that a valid advance decision to refuse a specified treatment, made when the patient had capacity to make it, should be complied with by doctors as if the patient still had full capacity to take such decisions. Any doctor who provides treatment that a patient has declined risks a possible charge of assault.

Mr Justice Baker said, “It is to say the least unfortunate that there should be such uncertainty and it is to be hoped that the opportunity will arise soon for the courts to resolve this question.”

He said that the practice direction cast doubt on whether advance decisions or powers granted under a lasting power of attorney to take treatment decisions on behalf of another person extended to provisions to withhold or withdraw artificial nutrition and hydration. The practice direction was made in July 2015 by James Munby, president of the High Court’s family division.2

The Mental Capacity Act, however, provides that an advance refusal of treatment or a decision taken under a lasting power of attorney may extend to life sustaining treatments, provided that strict requirements are met, and that doctors must give effect to such decisions as if the patient had made them at the later time. The Court of Protection has no power to overturn a valid advance decision that is applicable to the treatment proposed.

Giving a lecture in Oxford on 11 October, Mr Justice Baker said, “So far as I am aware, there is no instance in this country of a case in which artificial nutrition and hydration have been withheld or withdrawn from a patient suffering from a disorder of consciousness.”

He said that the power to make binding advance decisions “at first sight seems a sound and useful provision” but that in his experience it was little known and little used. There was a “widespread reluctance” to execute advance decisions, which he suspected was due to people’s fears that their wishes might change over time.

“We may now think we would never want to be in a minimally conscious state, but we don’t truly know how we will feel when the moment arrives. We are concerned that, if we change our minds at a later date, it may be too late and our apparently clear expressions when we had capacity will prevail.”

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