Landmark case reaffirms the importance of Lasting Powers of Attorney for health and welfare

People often feel that in making provision for future events they are somehow tempting fate. 

No-one wants to dwell on what lies ahead and particularly the possibility of illness and eventual death.  Some of us will nonetheless make a will.  Some of us might make a Lasting Power of Attorney (LPA) to ensure that our property and affairs can be dealt with should our mental capacity become impaired.  Considerably fewer of us will make a LPA in respect of our health and welfare.  Yet most people would agree that where they live, how they are cared for and perhaps, most fundamentally, whether life sustaining treatment should be maintained or withdrawn, are significantly more important to them than what happens when they are dead or how their money is managed.

Rarely has this issue been brought into more painful focus than in the recent case of M and Others v NHS Primary Healthcare Trust [2011].  M was 43 years old in 2003 and about to depart on a skiing holiday with her partner when she suffered viral encephalitis, leaving her with extensive and irreparable brain damage.  Since that day she has been immobile and entirely dependant on others.  Unlike other recent cases where the patient concerned was said to be in a ‘persistent vegetative state’, it was established that M was ‘minimally conscious.’  Since April 2003, M has been fed and hydrated via a gastrostomy tube and it had been agreed by doctors that there was no realistic prospect of any improvement in her condition.  M’s family applied to the court for an order that life sustaining treatment be withdrawn and that she should be allowed to die.

M’s family told the court that M had made her wishes known to them over the years, in particular through comments she had made in respect of other family members and the well reported case of Tony Bland, who was injured in the Hillsborough disaster.  They maintained that she would not have wished to live in her condition.

The Judge recognised that the law allows people to make such wishes formally known by making an ‘advance direction’.  He noted that the court would have found such a direction as binding and gave considerable weight to the fact that M had not made one.  He concluded that her comments were informal only and, whilst he would take them into account, they were not decisive.  Ultimately he concluded that the preservation of life was paramount and life sustaining treatment should be maintained. 

Everyone will have a different reaction to the facts in this case.  Some will believe that the right to life has been justifiably preserved; others will be horrified that a person, against wishes expressed by them prior to illness and despite the views of their family, must be kept alive in such a condition.  Either way, one thing is clear from the judgement – the only way to ensure that your views, one way or another, are followed, is to make an express advanced declaration of those views or make a Lasting Power of Attorney.

The Lasting Power of Attorney for Health and Welfare allows your chosen representative (or attorney) to make important decisions about your personal and medical care, should a time come when you are unable to make them for yourself.  The form provides an opportunity to elect that your attorney(s) can consent to the withdrawal of life sustaining treatment on your behalf.  This presents a chance to discuss your views and gives you the peace of mind which comes from knowing that they will be followed.

The sad case of M comes with a further warning.  You are never too young to make a LPA.  Undoubtedly M had no idea at the age of 43 when preparing to depart for her holiday just what horror lay around the corner.  Cases such as these are, thankfully, extremely rare, but our advice and the moral, if any, from M’s story is to take steps now to ensure that provision is made for the future.  That way, you can get on with enjoying the present.

For further advice contact Jenny Bruce on 01206 217377 or email [email protected]