You may have heard of the recent case in the news where a judge ruled that Paul Briggs, who suffered a severe brain injury from a motorcycle crash in 2013, should be allowed to die. The case was prompted by his wife, Lindsay, who argued that his ‘minimally conscious state’, where he is being kept alive through medical intervention, would have been against his wishes.
Despite his wife protesting that Paul Briggs had previously made clear to her that he did not want his life prolonged if he had no quality of life, the case took a considerable time in court before a verdict was reached. Even now that a decision has been made by the Court of Protection, the Official Solicitor, whose role it is to act for vulnerable people who lack capacity, is to seek leave to appeal the decision in a higher court.
The best way to avoid a gruelling and emotionally painful court case, such as that suffered by Lindsey Briggs, is to set out your wishes for such a situation in advance at a point at which you are capable of doing so. There are many ways you can do this.
The Mental Capacity Act 2005 enabled adults with capacity to make legally binding treatment-refusals in the event that they then lose capacity; these were originally called ‘living wills’. Advance directives or ‘living wills’ allow you to outline a decision to refuse a specific type of treatment if, at some point, you lack the ability to make the decision yourself. The treatments you wish to refuse must be explicitly named, for example those aimed at keeping you alive, and you must be clear about the circumstances in which you wish to refuse such treatment. In order to ensure that advance directives are legally binding, you must have had mental capacity to make it, have it written down and signed by you and a witness.
You can also complete a lasting power of attorney (LPA) for health and welfare. LPA’s have been introduced in recent years to help deal with situations like these. They give someone you trust the legal authority to make decisions on your behalf in the event that you lack mental capacity in the future. Unlike previous Enduring Powers of Attorney, these LPAs allow you to choose whether your attorneys can give or refuse consent to life-sustaining treatment on your behalf and you can include preferences on how you should be treated if you lose capacity, for example, if you wish to be on a vegetarian diet. An LPA can help protect yourself and offer guidance and assistance to your attorneys to help them make the correct decisions on your behalf.
Although situations like that of Paul Briggs and his wife are emotionally traumatic, they can be eased to some extent by advanced planning and putting into writing what you would like to happen in such an eventuality.