Lasting Power of Attorney in UK Law

However, any treatment which the doctors do decide to give must be lawful. Generally it is the patient's consent which makes invasive medical treatment lawful. It is not lawful to treat a patient who has capacity and refuses that treatment. Nor is it lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it: see 2005 Act, sections 24 to 26.

However, section 5 does not expressly refer both to acts and to omissions, the giving or withholding of treatment. The reason for this, in my view, is that the fundamental question is whether it is lawful to give the treatment, not whether it is lawful to withhold it.

The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.

I also respectfully disagree with the statement that "no prospect of recovery" means "no prospect of recovering such a state of good health as will avert the looming prospect of death if the life-sustaining treatment is given". But where a patient is suffering from an incurable illness, disease or disability, it is not very helpful to talk of recovering a state of "good health".

In deciding what provision should be made in a will to be executed on P's behalf and which, ex hypothesi, will only have effect after he is dead, what are P's best interests? Mr Boyle stressed the principle of adult autonomy; and said that P's best interests would be served simply by giving effect to his wishes. In my judgment the decision maker is entitled to take into account, in assessing what is in P's best interests, how he will be remembered after his death.

In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as: (a) the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM (an adult), A Local Authority v MM at [124]; (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM (an adult), A Local Authority v MM at [124]; (d) the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.

In future, therefore, no such application for an order authorising the withdrawal of ANH from a patient in VS or MCS should be made unless (1) a SMART assessment (or similarly validated equivalent) has been carried out to provide a diagnosis of the patient's disorder of consciousness and (2) in the case of a patient thereby diagnosed as being in an MCS, a series of WHIM assessments have been carried out over time with a view to tracking the patient's progress and recovery (if any) through the MCS.