The Commission on Assisted Dying released a report on the current legal position in relation to euthanasia and assisted dying to see whether it was fit for purpose. They also set out a proposal on how the legal framework might work should assisted dying become implemented in England and Wales.
This is only a report and it should be remembered that actively taking steps to end someone’s life and assisted suicide are illegal and can currently result in a prison sentence of up to 14 years.
For many years it has been argued that the medical profession have been using ‘passive euthanasia’ by, for example, withdrawing food and hydration or by only administering palliative care rather than treatment that can extend a patient’s life expectancy where it is in the patient’s best interests to do so. It is also possible for a patient with full mental capacity to sign a Do Not Resuscitate Order when they are admitted to hospital.
This idea of Passive Euthanasia is administered subjectively and each individual doctor may have different views regarding this. This would mean that if you have strong views either way on this issue the results could vary depending on who is treating you.
If a patient has full mental capacity they are free to refuse medical treatment. The difficulties arise where they do not have mental capacity to give consent or refusal to treatment. Whilst it is impossible to demand medical treatment, there are ways of legally refusing life sustaining medical treatment which, if correctly prepared, cannot be overturned by medical practitioners.
An Advance Decision (or ‘Living Will’) sets out the specific circumstances where someone does not wish to receive life-sustaining medical treatment. The Advance Decision does need to relate to the exact position that the patient finds themselves in so it is limited. Also, whilst Advance Decisions are legally binding medical practitioners can be reluctant to honour these if the document was signed many years ago in case the patient’s views have since changed. Delays can also occur if there are any doubts as to what the patient meant if the wording is not sufficiently clear or if it needs to be checked to see if it was correctly executed.
Another option is to prepare and register a Lasting Power of Attorney in relation to health and welfare decisions. This allows a nominated person or persons to make decisions on a patient’s behalf to consent to medical treatment. The Attorney(s) can also refuse life-sustaining treatment. The Attorney(s) can make these decisions whenever the need arises so it is not limited to a specific situation meaning that they have a wider scope than an Advance Decision. Medical practitioners cannot overrule the decision of an Attorney. You do not have to give your Attorney(s) power to refuse life-sustaining treatment if you do not want them to make such decisions.
Your Attorney(s) can only make decisions if you are unable to do so yourself and the decisions that they can make are wider than just consent and refusal of medical treatment as they can make any decision regarding your health and welfare. They can also decide where you should live which can be very useful if your views and those of your family conflict with those of the Local Authority.
A recent survey has shown that only 3% of those polled have made Advance Decisions or Lasting Powers of Attorney yet 60% of them would not wish to receive life sustaining treatment if they were dying with no hope of recovery. Whilst not a pleasant topic to think about, it is essential to plan ahead to ensure that your wishes can be carried out.
Please contact us if you have any question in regards to Advance Decisions or Lasting Powers of Attorney.
Mark Stubberfield
TG Baynes Solicitors
Downe House
303 High Street
Orpington
Kent BR6 0NJ
Tel – 01689 886084
