Allan Norman: Corollaries of the Right to Life: A Duty to Live or a Right to Die?

It's a pleasure to host this carefully argued guest post by solicitor and social worker Allan Norman on two important Court of Protection rulings on the 'right to die'.  Allan takes up issues around the presumption of capacity, personal autonomy, quality v quantity of life, and the controversial question of whether resources should have a bearing on these decisions.  If anybody would like to respond to Allan's arguments or arguments elsewhere on these cases, please use the comments below or get in touch if you'd like to write a guest post.

 Re E (Medical treatment: Anorexia) (Rev 1) [2012] EWHC 1639 (COP) (15 June 2012)

Thou shalt not kill, but need not strive
Officiously to keep alive
- from The Latest Decalogue, by Arthur Hugh Clough

A British Medical Journal editorial last month argued, 'Sanctity of life law has gone too far'. The Emeritus Professor of Medical Ethics, Raanan Gillon was specifically critiquing a judgement of the Court of Protection last year, W v M and Others [2011] EWHC 2443 (COP) (28 September 2011). That case held, notwithstanding the previously expressed wishes of the person concerned, who was in a minimally conscious state, that it was in their best interests to be kept alive, and that it was properly a matter for the court to decide. Gillon's editorial criticises the approach taken to best interests that overrides express wishes, the requirement to involve the court in best interests decision making, and the resource implications. The editorial has itself been criticised, as the UK Human Rights Blog has highlighted, as a call to "dehydrate dementia patients to save money". And that critique of Gillon resonates with another recent media story from another prominent health professor about the Liverpool Care Pathway, 'Elderly patients 'helped to die to free up beds', warns doctor'. With raw nerve criticisms like that, I am staking a lot when I defend Gillon's arguments, as I do here.

Some thoughts on recent developments in right to die case law

A series of recent court cases have continued to explore the boundaries of our legal rights to determine how and when we die. The case of Tony Nicklinson raises important questions about the right of disabled adults to be supported by professionals in ending their life. By contrast, the case of 'E', an anorexia patient, shows that capacity is an important 'gatekeeper' concept for autonomy over end of life decisions. But E's case also raises questions about how 'best interests' decisions regarding end of life decisions should be made.  The influence of 'intuition' on best interests decisions introduces problematic legal and political issues around uncertainty and arbitrariness. E's case also raises intriguing legal questions about the legal status of Court of Protection 'declarations' of best interests which are not accompanied by an order directing that a particular treatment be provided.

Authoring our ends

For the last two weeks the Court of Protection has been hearing a request from the family of a severely brain damaged who is in a minimally conscious state, to allow her to die.  The official solicitor, who is representing the woman – known as ‘M’ - as her litigation friend, opposes the request.  Until the judgment is published (probably later this week, or early next) we won’t know all the arguments and evidence advanced on both sides.  However, the press are attending the hearing and the family are reported to have said:

‘She can’t move, she can’t speak, she’s fed through a tube, she can’t even enjoy a cup of tea.

'She’s got no pleasure in life; her daily routine is just being taken out of bed, put in a chair, showered, then put back to bed.'

‘There’s no dignity in it.'

‘It’s not a life, it’s an existence and I know she wouldn’t want it.’

They are also reported to have said that ‘she would never want to live a life dependent on others, even if she retained her mental faculties.’