Update to main text para 13.10, page 397
There has been some debate[1] as to the position where the provision of clinically assisted artificial nutrition and hydration is clearly covered by a valid and applicable advance decision to refuse treatment or has been properly delegated by a Lasting Power of Attorney[2].
The authors consider that either a valid and applicable advance decision to refuse treatment (even by clinically assisted nutrition and hydration), or a valid delegation of the power of choice in a Lasting Power of Attorney for Welfare will relieve clinicians of the need to apply to court. This was confirmed (obiter) by Charles J in Briggs[3], where he agreed with the parties that a valid and applicable advance decision to refuse treatment would be decisive, and so exclude consideration of the best interests test under the MCA s4. Importantly, Charles J went further, saying that – particularly given the stringent conditions necessary for validity – even an invalid or inapplicable advance decision will be a relevant factor in the best interests analysis, and that the court should take into account ‘the impact of that removal of that person’s right of self-determination that he or she has sought to exercise by making an advance decision’ (§22).
In any case where there is doubt about the validity or applicability of the advance decision to refuse treatment or lasting power of attorney (for instance, if there was any indication that the patient had expressed contrary views subsequent to making the decision), clinicians should apply to court for clarification.
The publicity which the Briggs case attracted may encourage more people to consider making advance decisions, and the fact that even an invalid advance decision to refuse treatment is relevant to future treatment places two additional responsibilities on clinicians: first, they must be alive to the possibility of their patient having made such a decision, and, secondly, they should be receptive to discussing the making of the decision in the first place. Should the practice become more common, the advantage will be to relieve Trusts of the need to make an application to court, saving significant time and costs.
Footnotes
[1] Sparked off by Baker J’s Oxford speech of 11 October 2016, in which he doubted whether even a valid advance decision to refuse treatment or a properly delegated decision in a Lasting Power of Attorney could safely found withdrawal of clinically assisted artificial nutrition and hydration without recourse to the Court. He was wrongly reported in the press to have ‘revealed’ that in future, all decisions about withdrawal of clinically assisted artificial nutrition and hydration would have to be brought to court, an inaccuracy which was roundly disposed of in Alex Ruck Keene’s blogpost on the point.
[2] See main text paras 2.14-2.17, 3.4, 3.12, 4.2, 5.2, 13.1 fn8, 13.18
[3] Briggs v Briggs [2016] EWCOP 53 at §(10) and §§20-32, §§35 to 38; Mr Briggs made no advance decision or power of attorney, so whilst the view is obiter, the authors would suggest the reasoning is powerful and should be followed.