Last week, Mr Justice Hayden, sitting at the Court of Protection, made a decision which he described as an ‘evolution in case law’.
He was asked to consider an application by the family of a seriously ill MS patient and whether life sustaining treatment should be withdrawn, permitting her to die.
The reason that this case is ground-breaking is that the patient was minimally aware rather than in a persistent vegetative state as has been the case with previous decisions to withdraw treatment.
In this case, both the medical team caring for the patient and her family were in agreement as to whether treatment should be withdrawn but it was necessary for a decision to be made by the court. A particular point in this case was her family made it clear that she would not have wanted to continue to live in what, to her was an intolerable situation. The application was approved by the Judge.
Courts are increasingly involved in medical decisions or asked to consider whether decisions already made have been made in the best interests of the patient.
In another decision handed down by the High Court at the beginning of the month, they held that a patient, lacking capacity, who went on to die, had had his Human Rights breached when a doctor determined that he should not be resuscitated without consultation of the family. Although the decision was later reversed on the records, the Judge still concluded that there had been a breach of Article 8 – the right to respect for private life.
These are always difficult cases, particularly where there is a conflict between the patient’s family and treating doctors but as the legal team in the MS case indicated the Courts usually decide these cases on their own facts.
If you or a member of your family has been affected by the issues in this article please contact our Clinical Negligence Team on 0800 316 8892.