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Last week the Law Society issued a press release advising elderly people to review their Wills regularly to take into account the rising costs of care home fees.
Mutual Wills are a means by which two individuals can make Wills knowing that once one of them has died, the other is not free to change their Will.
The Court of Protection is currently hearing an application from the family of a 51 year old woman to have her feeding tubes withdrawn.
The woman, known only as M, suffered a brainstem wasting disease eight years ago which has left her in a ‘minimally conscious state’ and dependent on nursing care.
The case has been brought by M’s family and long term partner who believe that she has ‘no quality of life’, and that she is suffering and in pain. Their view is that M would want her hydration and nutrition tube to be removed, and to be allowed to die with dignity.
In 1993 the House of Lords agreed that it would not be unlawful for Hillsborough victim Tony Bland’s ‘life-sustaining treatment’ to be discontinued. However, crucially, Tony Bland was in what was called a ‘persistent vegetative state’ which meant that he was thought to have no awareness of his condition. In M’s case, her condition is described as being in a ‘minimally conscious state’ which means that she is understood to have some degree of consciousness and her carers believe that she can communicate.
Since the Mental Capacity Act 2005 came into force, the Court of Protection has been given the power to make decisions for people who lack capacity. This act emphasised the importance of allowing people to make decisions for themselves where possible. Only where it has been established that the person lacks capacity can the Court make a decision for him or her.
The question for the judge in each case is whether what is suggested is in the person’s ‘best interests’. M’s case is viewed as a test case because it is thought to be the first time that the Court have been asked to make a life or death decision for someone who has some degree of consciousness.
Hard cases like M’s are highly sensitive, and arouse strong feelings on both sides. On the one hand, M’s family and friends believe that her quality of life is so poor that it is in her best interests for her suffering to be ended. On the other hand, many others believe that the steps M’s family are seeking amount to euthanasia, which they fear may turn a ‘right to die’ into a ‘duty to die’.
It is however clear that there are no easy answers to those being faced by the Court of Protection judge this week.