“If my life is impaired in such a way that my quality of life would be severely restricted, I would wish my attorneys to make the necessary arrangements which would lead to my demise.”
“If the option is available at the time and my pain and suffering is unbearable and there is no prospect for an improvement, my preference is for active euthanasia to end my life with dignity in peace.”
“Please do NOT try and keep me alive if the end result means I’ll be nothing more than a vegetable.”
“My attorneys should consider, if possible, aiding the end of my life should I become incapacitated to the extent that I have no ability to affect or comprehend my situation or environment.”
As I explained here last month, lasting powers of attorney (‘LPAs’) are generally made by people (‘donors’) who need, or are likely to need, the help of others to make decisions on their behalf. The attorney (or attorneys) may look after the donor’s property and financial affairs, and/or the donor’s health and welfare. Attorneys can’t make decisions on behalf of the donor until such time as the donor lacks the capacity to make those decisions – until then, they can only help the donor make decisions. Whatever, they should always be guided by what is in the donor’s best interests, and by the donor’s instructions and preferences.
The above quotes are all instructions/preferences expressed by donors in their LPAs. Now, as I’ve just indicated an attorney should normally follow the donor’s instructions. So the question is: are such instructions effective, such that they should be followed?
The question recently fell to be determined by Lord Justice Baker in the Court of Protection, in the case The Public Guardian v DA & Others, which actually concerned two test cases brought by the Public Guardian. (The Office of the Public Guardian protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance, and is where LPAs must be registered.) The first of the test cases dealt with the euthanasia instructions issue, and actually related to a number of LPAs for health and welfare which contemplated euthanasia or assisted suicide by the attorneys.
LPAs were created by the Mental Capacity Act 2005. As Lord Justice Baker observed, section 62 of the Act specifically provides that:
“For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of s.2 of the Suicide Act 1961 (assisting suicide).”
And the Suicide Act of course provides that a person commits an offence if they knowingly do an act capable of encouraging or assisting the suicide or attempted suicide of another person.
Lord Justice Baker went on to explain that the 2005 Act does allow a person to make a decision in advance to refuse medical treatment, including life-sustaining treatment (subject to safeguards). However, Parliament chose not to extend the scheme of advance decisions to a decision by a person to terminate their life.
It will come as no surprise that Lord Justice Baker agreed with the view of the Public Guardian that an instruction or preference in an LPA directing or expressing a wish that an attorney takes steps to bring about the donor’s death is instructing or encouraging someone to commit an unlawful act, and therefore ineffective.
Some of the instructions given by donors were along the lines that if the law changes to allow assisted suicide then the donor instructed the attorney to make a decision to terminate the donor’s life (see, for example, the second of the quotes above). Were such instructions also ineffective? Lord Justice Baker held that they were. In the event that Parliament at some future point permits an attorney to take steps to terminate the donor’s life, any change in the law is likely to be subject to detailed statutory provisions and guidance in a Code of Practice, the terms of which cannot at this stage be predicted. In those circumstances, for the court to give the green light to the inclusion in LPAs of any such provision at this stage would be likely to cause uncertainty and confusion. And in those circumstances, the right course is to declare all such provisions, whether they be instructions or preferences, ineffective.
And that is what Lord Justice Baker did in all of the specific cases before him, including those to which the quotes at the beginning of this post apply. Accordingly, those provisions in the LPAs were severed (i.e. removed) from the LPAs.
You can read the full judgment of Lord Justice Baker here (note that only the first half of the judgment deals with the euthanasia cases).
