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‘Locked-in’ and ‘Force Fed’ – Worrying health and welfare issues

When it rains, it pours. Not only is this expression relevant to the weather that we experienced in June, it also bears some resemblance to the number of controversial health and welfare questions that were brought before the Courts last month.

In one case a 32 year old, “intelligent and articulate” yet anorexic woman (known only as ‘E’) has received the shocking news that she will be force fed against her will. In the other, Tony Nicklinson who was paralysed after suffering a stroke in 2005, is waiting for a remedy from the High Court to his Locked-In Syndrome.

When looking a little deeper though, the decision about E’s welfare may not be so stark. Mr Justice Peter Jackson, sitting in the Court of Protection, held that E did not have capacity to make decisions for herself. In fact, before being brought before the Court E had made a living will, initially deciding that when the time came she wanted to die without revival. However she later changed her living will and said she wanted to live and make her own future decisions. Therefore, after becoming legally incapable, E’s living will had limited practical effect.

With that in mind Mr Justice Peter Jackson had to try to balance E’s wishes and independence with her best interests and future life. He said that whilst E was “gravely unwell, she is not incurable” and that he “would not overrule her wishes if further treatment was futile, but it is not”. He said that “E is a special person, whose life is of value”. That said, he did accept that there were significant risks involved with treatment and that the prospects of even short term success were minimal. Had E’s living will not been altered, Mr Justice Peter Jackson’s decision may have been more difficult to reconcile with Mrs Justice Theis’s decision earlier this year in the case of XB.

The outcome for Tony Nicklinson’s case is still to be decided by the High Court. Should the Court decide in his favour, one of our society’s greatest unanswered questions may receive a highly controversial answer. But this is doubtful. Mr Nicklinson has contemplated the decision to end his life for the last seven years and argues that the current law condemns him to live in a state of extreme suffering, with a life expectancy of over 20 years. Mr Nicklinson believes he is entitled to a remedy from the Court. This is clearly an arguable standpoint.

But instead of leaving it at that, Mr Nicklinson is seeking a declaration that “the common law defence of necessity would be available to a doctor who, acting out of his professional and human duty, assisted him to die”- a direct challenge to the current law on Euthanasia. David Perry QC for the Ministry of Justice, opposing the action, has stated that the law is well established and that “the claimant is expressly seeking to bring about a change in the law which parliament has refused to change”.

In March the House of Commons endorsed the DPP’s guidelines and compassionate policy on assisted suicide. But this action goes far beyond those guidelines and policy considerations as Mr Nicklinson would not physically be able kill himself even with assistance.

If the decision in E is anything to go by, Mr Nicklinson’s wishes may not be granted. Like E, Mr Nicklinson is not terminally ill. He apparently does not suffer from significant physical pain either.

Unlike E, he is considered to have capacity to make his own decisions but he is before a Court that may not even have capacity to change the law.

Should you wish to make a Will, an advance decision or discuss your future health and welfare, please do not hesitate to contact the Wills & Probate team at Blacks on 0113 207 0000

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