Death Rights Flashcards
ss 24-26 Mental Capacity Act 2005
These allow for advance decisions regarding withdrawal of future treatment.
s 24(1) MCA 2005
A patient is able to make an advance decision that if they later lack capacity, then a specified treatment is not to be carried out.
s 25(3) MCA 2005
P must have capacity to consent at the time of making the advance decision.
s 25(6)
AD must be made in signed writing by P in the presence of a witness. Act as evidentiary safeguards to prevent abuses and ensure this was truly the patients intention.
W v M (CoP)
W applied for M to have life-sustaining treatment withdrawn. M lacked capacity due to her condition and had not made an AD, but previously expressed wishes that she did not want such treatment to continue. Doctors did not agree it was in M’s best interests for treatment to be withdrawn.
CoP refused W’s application - best interests is not what M would have decided if she had capacity, but an objective test as to what is in her best interests. Since M still expressed some pleasure from her family’s presence, not in her best interests objectively to remove treatment.
M’s informal statements were insufficient to constitute an AD - could not take these into account under s 4 (best interests) or ss 24-26 (AD).
Re E (Medical Treatment: Anorexia)
E was severely malnourished and refused to eat. LA sought declaration that it would be lawful to forcibly feed her if necessary. E had previously twice attempted to make ADs that treatment should not be carried out.
Jackson J granted declaration - held that her ADs were unlawful since at the time she did not have capacity under MCA 2005. On best interests, the presumption in favour of life under the MCA was not displaced even though E and her parents did not want the treatment to be carried out.
Jonathan Montgomery
‘What is a Presumption Worth’ - argues that Jackson J essentially created a presumption of incapacity for ADs. He did not consider any presumption of capacity in favour of E was applicable, despite s 1 MCA which states that an individual should be presumed to have capacity until proven otherwise.
MCA does not have any overriding presumptions, let alone a very weighty presumption in favour of life as Jackson J appears to have created.
Arguably shows limited rights of patients - weighty presumption in favour of life created which is difficult for E to displace on autonomy grounds. Courts have sided with doctors and decided themselves what is in P’s best interests, rather than what P thinks is in their best interests.
Airedale NHS Trust v Bland
B injured in Hillsborough disaster - required life sustaining treatment to be kept alive. HL - life-sustaining treatment could be withdrawn even where P lacks capacity to consent where it is in their best interests.
R v Adams
Established doctrine of double effect - Devlin J said that while there is no special defence to murder for doctors, doctrine of double effect may protect them. Doctor is not liable if their primary intention was the relief of P’s suffering, and hastening or causing P’s death was merely an incidental consequence of administering high doses of painkilling drugs.
R v Cox
Double effect is a well-established legal principle, Ognall J said that there can be no doubt that a doctor may lawfully administer such high doses if primary intention was relief of suffering.
s 2(1) Suicide Act 1961
General prohibition on assisted suicide - criminal offence to assist or encourage the suicide of another.
s 2(4) Suicide Act 1961
No prosecution for assisted suicide under s 2(1) shall be made without the DPP’s consent - must be in the public interest.
R (on the application of Pretty) v DPP
P suffered from motor neurone disease and wished to die at the time and manner of her choosing. She argued that s 2(1) Suicide Act violated her Art 8 ECHR right to private and family life.
HL held that Art 8 rights were not even engaged in this case, but even if they were then the interference would be lawful since s 2(1) had the legitimate aim of protection of the vulnerable.
Pretty v UK
P brought a claim in the ECtHR that English law failed to properly respect her Art 8 rights. ECtHR did find Art 8 engaged in P’s right to decide the time and manner of her death, but found no violate of Art 8 since s 2(1) SA 1961 was a proportionate means of achieving a legitimate aim of protecting vulnerable, since risks of abuse existed with legalisation.
R (on the application of Nicklinson v DPP)
N suffered locked in syndrome and argued that absolute prohibition on assisted suicide under s 2(1) SA 1961 was a disproportionate interference with his Art 8 rights.
SC unanimously held that N’s Art 8 rights were engaged in his right to die, in stark contrast to Pretty. Majority held that the court had the authority to grant a declaration of incompatibility of s 2(1) SA with the ECHR under s 2(4) HRA 1998. Minority, including Lord Sumption argued that this was such a sensitive matter that it was only appropriate for Parlt to decide.
3 SC Justices in the majority were not willing to grant a declaration incompatibility at this juncture - not appropriate given Parlt. had recently considered the law. Nevertheless, Lord Neuberger in particular urged Parlt. to consider reforming s 2(1). Of the majority, Lady Hale and Lord Kerr would have been prepared to grant a declaration of incompatibility.
Lady Hale - incompatible not because of the general prohibition itself, but because it fails to admit of any exceptions.
Lord Kerr - interferences with ECHR rights must be evidence-based, and the evidence failed to support the proposition that a framework for AS would increase pressure on the vulnerable and elderly.
