A woman suffering from Parkinson’s disease and dementia has made a “Living Will” which refuses life-prolonging treatment in advance.
‘Living Wills’ set out specific actions to be taken on a person’s behalf if they become seriously ill and are no longer capable of making decisions for themselves.
In N & Anor v E & Ors, the woman was the subject of a dispute over her £30 million estate. She had suffered from Parkinson’s disease since 1999 and had been diagnosed with early stage dementia in 2006.
Her Living Will stated that she would refuse any treatment “aimed only at prolonging or sustaining” her life. She would, however, consent to treatment designed to relieve pain and suffering, even if the effect is to shorten her life.
These provisions will apply if two medical professionals agree that she is no longer able to make decisions regarding her treatment. They will also apply if she is going to spend the rest of her life in “unremitting pain”, in a state of unconsciousness that she is unlikely to wake from, or if she has “an incurable condition” from which she will likely die in a short time.
Senior Judge Lush called the woman’s advanced refusal of treatment a “novel point” in the proceedings which “has never been considered by the court before”.
However, he said that Section 25(2)(b) of the Mental Capacity Act 2005 says that an advance decision is not valid if it was made prior to a Lasting Power of Attorney (LPA) for personal welfare being granted.
These give someone the legal right to make certain decisions for a person should they ever become incapable of doing so themselves.
The judge noted that, as the woman had only given someone LPA for her personal welfare after the Living Will was made, the document was not valid under Section 25(2)(b).
However, there was a remedy, he added. Section 26(4) of the 2005 Act authorises the court to declare if an advance decision is valid. Therefore, the court was able to declare that the conditions set out in the document would “continue to exist and to be valid and to be applicable to her treatment”.
To read the full judgment, click here.
