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13/11/18 BRAIN INJURY GROUP LONDON Patricia Wass Consultant MY LIFE, MY DEATH, MY CHOICE? END OF LIFE DECISIONS WHERE ARE WE NOW? 13/11/18 BRAIN INJURY GROUP LONDON Patricia Wass Consultant Solicitor Enable Law C:\NRPORTBL\DOCUMENTS\JH3\28782128_1.DOC PAGE: 1 OF 39 PATRICIA WASS Patricia has over 30 years' experience working as a Solicitor dealing with all aspects of private client law. Patricia is a consultant in the mental capacity team at Enable Law (part of the Foot Anstey Group) and specialises in Powers of Attorney, Court of Protection work and legal issues relating to the elderly and vulnerable. She is a Panel Deputy for the Office of the Public Guardian, one of only 71 people acting in this role throughout England and Wales. She lectures regularly on her practice area for various legal training providers and contributes articles to legal journals. Patricia has written for the Law Society, the Elder Law Journal, and has been interviewed by industry publications including STEP and CityWealth Magazine. Patricia is the current Worldwide Chair of the Society of Trust & Estate Practitioners. Patricia served as a member of the West of England STEP Committee between 2000 and 2013 (Chair between 2006 and 2009) and is a Past Chair of the Law Society Private Client Executive Committee. Patricia is also a past Chair of the STEP England and Wales Regional Committee, a member of the STEP Governance Council, and acts as a Director on the STEP Worldwide Board. She is also a fully accredited member of Solicitors for the Elderly (SFE) and assisted on the Committee for the Devon & Cornwall SFE Regional Group. Patricia is recognised as a Top Ranked 'Leader in her Field' by Chambers UK legal directory. C:\NRPORTBL\DOCUMENTS\JH3\28782128_1.DOC PAGE: 2 OF 39 My Life, My Death, My Choice? End of Life Decisions – Where are we now? The founder of the modern hospice movement, Dame Cicely Saunders (1918 – 2005) said: "You matter because you are you, and you matter to the end of your life." It is a fact that more and more people are living with long term conditions, partly due to those acquired in adult life, partly because more babies and children with life limiting conditions can now live to adulthood and, mostly, because we are all living longer. But, ultimately, we all die. It was the much quoted Benjamin Franklin who said: "In this world nothing is certain but death and taxes." Over the last 18 months, we have seen a number of high profile cases reported concerning end of life decision making. For example, the very sad cases of Charlie Gard and Alfie Evans whose parents have tested the Doctors and the Court system in their quest to keep Charlie and Alfie alive and for treatment to be allowed to be administered which they hoped would give their children a better quality of life, and the ability to be allowed to live for a bit longer, despite their profound disabilities. Sadly, both children have died. We have also seen the case of Noel Conway brought in an attempt to change the current law on assisted dying. In the End of Life Care Strategy 2008, produced by the National Council for Palliative Care, there is a working definition of End of Life Care which is as follows: "End of Life Care is care that helps all those with advanced, progressive, incurable illness to live as well as possible until they die. It enables the supportive and palliative care needs of both patient and family to be identified and met throughout the last phase of life and into bereavement. It includes management of pain and other symptoms and provision of psychological, social, spiritual and practical support." There is a further definition of End of Life Care included in the NHS End of Life Care Strategy (Actions for End of Life 2014 – 2016) which is "any care provided to a patient, family member or carer where the patient is felt to be likely to have less than a year to live." When considering issues around assisted dying we need to understand the current legal position and also to explore how this is being challenged. The Legal Framework The current legal status of assisted suicide The phrase "assisted suicide" is now more commonly referred to as "assisted dying". Deliberately and directly taking the life of another person, whether that person is dying or not, constitutes the crime of murder. The Suicide Act 1961, updated by The Coroners and Justice Act 2009, makes encouraging or assisting a suicide a crime which is punishable by 14 years imprisonment. Section 2(i) of The Suicide Act 1961 provides: "A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on indictment to imprisonment for a term not exceeding fourteen years." The Suicide Act 1961 is applicable when a substantial part of the aiding, abetting, procuring or counselling of the suicide occurs in England and Wales. The suicide itself can be committed in any country. C:\NRPORTBL\DOCUMENTS\JH3\28782128_1.DOC PAGE: 3 OF 39 As with every other case, the Code for Crown Prosecutors (the Code) will be applied; there must be enough evidence to provide a realistic prospect of conviction. If the case does not pass the evidential stage, it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, consideration must be given as to whether a prosecution is needed in the public interest. The Code sets out a substantial number of factors both for and against prosecution in all types of cases. Cases of assisted suicide are dealt with in the Special Crimes Division in the Crown Prosecution Service (CPS) Headquarters. The Head of that division reports directly to the Director of Public Prosecutions (the DPP). Any prosecution outside the Special Crimes Division of CPS HQ who receives any enquiry or case involving an allegation of assisted suicide has to notify the Head of the Special Crimes Division so that the matter can be investigated further. When considering such cases, the CPS policy for prosecutors in respect of cases of encouraging or assisting suicide has to be read alongside the Code for Crown Prosecutors. In recent years the law on assisted suicide (or assisted dying) has been challenged and continues to be challenged. A number of cases have set the scene for the current law to be overhauled and we have seen a number of bills put before Parliament seeking to address the issues. Some of the most significant cases are as follows: 1. Airedale NHS Trust v Bland [1993] 1 All ER 821 H2 Anthony Bland (21 September 1970 – 3 March 1993) was a supporter of Liverpool FC and was injured in the Hillsborough Football disaster. This was a human crush at Hillsborough Football Stadium in Sheffield on 15 April 1989. There were 96 fatalities and 766 injuries, making it the worst disaster in British sporting disaster. Tony Bland was one of the supporters, and whilst he survived the initial crush, he suffered severe brain damage and he eventually became the disaster's 96th victim on 3 March 1993, aged 22, after being in a coma for nearly 4 years. He never regained consciousness after the crush, and was left in a permanently vegetative state. The Airedale NHS Trust applied to the Court at first instance for a declaration to the effect that: - They might lawfully discontinue all life-sustaining treatment and medical support measures, including ventilation, nutrition and hydration by artificial means - Any subsequent treatment given should be for the sole purpose of enabling him to end his life in dignity and free from pain and suffering - If death should then occur, its cause should be attributed to the natural and other causes of his present state - And none of those concerned should, as a result, be subject to any criminal or civil liability For the most part the declaration was granted and the Court considered it was in the patient's best interests for treatment to be withheld and that its discontinuance was in accordance with good medical practice. Acting on Tony Bland's behalf, the Official Solicitor, acting as his Guardian ad litem, appealed the decision which then went to the Court of Appeal. In the Court of Appeal, and because of the legal ramifications, a number of Expert witnesses were called to give evidence. These included Professor Bryan Jennett, who along with Professor Fred Plum, coined the term "persistent vegetative state" in 1972. The opinion of the Experts on all sides was that Bland had no awareness and could experience no pain or pleasure, and there was no hope of any recovery. In those circumstances, the Court of Appeal affirmed the decision of the High Court. The Official Solicitor then appealed to the House of Lords. C:\NRPORTBL\DOCUMENTS\JH3\28782128_1.DOC PAGE: 4 OF 39 All five Law Lords who heard the Appeal gave their own reasoned Judgments and they also unanimously dismissed the Appeal. They all agreed that, although the object of medical treatment and care was to benefit the patient, since a large body of informed and responsible medical opinion was of the view that existence in a permanent vegetative state was of no benefit to the patient, the principle of the sanctity of life, which was not absolute, would not be violated by ceasing to give medical treatment. The Judges acknowledged that the care needed to keep Bland alive had involved invasive manipulation of his body, to which he had not consented and from which he did not benefit.
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