The case of an investment banker who suffered severe brain damage following a heart attack will be heard by the Supreme Court in the United Kingdom in a test of whether judges need to authorise the withdrawal of end of life care.

The legal challenge by the official solicitor, brought in the face of opposition by the man’s family and his doctors, had been accelerated through to the UK’s highest court because of his condition. The man, “Mr Y”, has, however, since died.

His end of life care, and who makes those decisions, is one faced by thousands of people every year. The case was brought because families not only have to endure the protracted trauma of seeing their relatives reduced to a vegetative state but must then undertake costly and time-consuming legal action to obtain judicial permission to turn off machines that sustain their lives.

In November 2017, the high court ruled that the court of protection did not need to be consulted in cases such as that of Mr Y where clinicians and the patient’s family agree that it is not in the best interests of the patient to be kept alive in a coma.

The banker was 52 when he had a cardiac arrest last June. Before then, he was very active despite working long hours in a stressful profession. He ran and skied, regularly went to the gym and was said to have loved music and rock concerts. He had not left a living will or any instructions on what should happen to him in the case of sudden illness.

After the heart attack, he was said to be unaware of either himself or his environment. It was deemed highly improbable that he would regain consciousness.

end of life care, advance health directive, estate planning, mitchells solicitorsHis wife, their two children and his brother and sister, the high court heard, all accepted that Mr Y would not want to live in a vegetative or minimally conscious state with profound disabilities.

“He would hate to be helpless and dependent on other people for his daily needs,” the judgment said. “He would not want to live in a care home.”

The judge concluded there was no legal obligation “that all cases concerning the withdrawal of CANH [clinically assisted nutrition and hydration], or end of life care, from a person who lacks capacity must be sanctioned by the court”.

End of Life Care in Queensland

A person is presumed to have capacity to make health care decisions. A person will have capacity if they can:

  • understand the nature and effect of decisions about the health care;
  • freely and voluntarily make decisions about the health care; and
  • communicate the decision in some way.

If a person no longer has capacity, a substitute decision-maker will need to make the health care decision on the person’s behalf. This situation often may arise when a person nears the end of their life.

If the person who has lost capacity had previously made an Advance Health Directive which gives a direction about their health care or medical treatment, that direction must be followed. If the person does not have an Advance Health Directive, the first person on the following list who is available, willing and able to act can be a substitute decision-maker, and make health care decisions or provide consent to health care for a person with impaired capacity (in order of priority):

end of life care, advance health directive, estate planning, mitchells solicitorsA guardian or guardians appointed by the Queensland Civil and Administrative Tribunal (QCAT). Anyone over the age of 18 who is not a paid carer or health professional of the person without capacity can be appointed by QCAT as a guardian. if there is no person available or appropriate to act as a guardian, the Public Guardian can be appointed.

An attorney appointed by the person under an Enduring Power of Attorney.

A default decision-maker, known as a Statutory Health Attorney. This will be the first person from the following list who is available and willing to make the decision:

  • The spouse or partner of the person, so long as the relationship is close and continuing. In Queensland a spouse includes a de facto partner (one of two persons who live together as a couple on a genuine domestic basis but are not married or related), regardless of their gender.
  • An unpaid carer of the person.
  • A close relative or friend of the person.

The unpaid carer, and close friend or relative must be aged 18 years or over. Often decisions about health care at the end of life will need to be made urgently and quickly, and there is no Statutory Health Attorney available at short notice, or they may be unwilling to make the decision, or they may not be an appropriate person to make the decision. In these situations the Public Guardian will be the default decision-maker.

A substitute decision-maker can make most decisions about medical treatment for a person at the end of life, including consenting, or refusing to consent, to medical treatment, including life-sustaining treatment. However, some restrictions apply in relation to consenting to the withholding or withdrawing of life-sustaining treatment.

In Queensland if a substitute decision-maker has made a decision to withhold or withdraw life-sustaining treatment, the decision will only be followed by a health professional if he or she believes that commencing or continuing the treatment would not be good medical practice.

End of life care decisions work best when you’ve made arrangements prior to the loss of capacity for somebody to make these decisions for you.

If you have questions about planning for end of life care, contact us now for your FREE, 10-minute phone consultation. Our team of friendly, experienced estate planning lawyers will be happy to assist.