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Insights / News
Court of Protection decides first case on the validity of an advance decision or “living will” withdrawing life sustaining treatment under the Mental Capacity Act 2005.
Mark Mullins of Outer Temple Chambers represented the wife and family of a man with motor neurone disease, XB, at an urgent two day hearing in the Court of Protection on the 30th April and 1st May 2012.
In November 2011, while XB was still able to communicate through eye movements, he made an advance decision under the Mental Capacity Act 2005 which was both witnessed and recorded in writing. The decision said that ventilation and artificial feeding should be stopped when XB lost mental capacity. A carer subsequently raised a concern that XB’s wishes may not have been correctly recorded and there was also an issue as the form recording the decision appeared to show it was to expire on the 2nd May 2012.
On the 1st May 2012 Mrs. Justice Theis found that XB’s advance decision was valid and was not subject to a time limit. As XB could now no longer communicate his decisions, he had lost capacity under the Mental Capacity Act 2005 and his wish to withdraw the treatment sustaining his life was to be put into effect.
The judge emphasised the need, when concerns are raised about an advance decision, for these to be investigated promptly and evidence gathered quickly so the Court of Protection can deal with the case. She also emphasised the need for clear language in advance decisions and suggested that organisations offering templates for advance decisions might consider reviewing them in the light of this case.
Mark Mullins was instructed by Yogi Amin of Irwin Mitchell’s Sheffield office.
News 30 Apr, 2012