Assisted dying has been, and continues to be, an emotive and fiercely-debated topic in modern times. Many of us, if asked, may prefer the idea of dying peacefully ‘with dignity’ rather than suffering the consequences of a terminal and debilitating illness. Yet many of us also recognise the sanctity of life; the idea that any power over life and death should never be taken lightly or be open to abuse.

In 2017, a British Social Attitudes Survey found that 78% of people were in favour of allowing some form of voluntary euthanasia if it was carried out by a doctor for someone with an incurable illness. Even so, the current law is very clear on the matter. Whilst suicide itself is no longer a crime (it was until 1961), assisting or encouraging suicide is still a criminal act.

One of the major legal and ethical issues with assisted dying is establishing whether someone genuinely wishes to die. If their condition means they are unable to decide or communicate this, how can someone else take that life-or-death decision for them?

Lasting powers of attorney

Lasting Powers of Attorney (LPAs) are legal instruments which can transfer decision-making power. They allow you to appoint one or more people (your attorneys) to make decisions on your behalf when you are unable to do so yourself. In some situations, your attorneys can make decisions for you even if you are able.  When you make an LPA, in legal terms, you are referred to as ‘the donor’ as you are giving your attorneys certain decision-making powers.

One kind of LPA is a ‘Health and Care’ LPA, which allows your attorneys to decide matters for you such as your daily routine, medical care, and care home arrangements. Health and Care LPAs can only be used by your attorneys if you no longer have the capacity at the relevant time to make these decisions for yourself.

But could a Health and Care LPA, be used to specify circumstances when you would wish to die?

A recent group of test cases, Re DA & Others [2018] EWCOP 26, has provided clarity on this very question.

The test cases

Test cases are those which are purposefully brought before a court so that key legal questions can be considered and resolved. These cases then provide precedents for lawyers and courts to follow in future.

In Re DA & Others, the Office of the Public Guardian (the body responsible for registering LPAs) sought the Court of Protection’s ruling on whether it could register LPAs which directed attorneys to assist with the donor’s suicide. LPAs must be registered with the Office of the Public Guardian before they can be used.

Some examples of the LPA clauses at issue included:

“Should a vegetative existence arise (i.e. no prospect of a reasonable quality of life is possible) then life is to be terminated.”

And:

“If my life is impaired in such a way that my quality of life would be severely restricted, I would wish my attorneys to make the necessary arrangements which would lead to my demise [i.e. death].”

The first example shows a clear instruction to attorneys, whereas the second expresses the donor’s ‘wish’ for an assisted suicide. The court looked in more detail at the difference between instructions and preferences in LPAs and we will examine this in a later blog post.

The court’s decision

The court held that any terms in an LPA either giving instructions or expressing a preference for assisted dying were an encouragement, or a direction, for the attorney to commit an unlawful act, namely to assist suicide under section 2 of the Suicide Act 1961.

As such, the court directed that the terms in question should be severed. This essentially means that the rest of the LPA could take effect but the provisions relating to assisted dying would be removed.

Anticipating a change in the law

Some other LPA terms in the test cases were written in anticipation that the law might change, that assisting suicide in certain circumstances may become lawful in future.

It is easy to see why a donor might want to do this. LPAs can only be made when the donor has the mental capacity to do so, therefore, if the law changed after the donor lost capacity, they could at least hope that their existing provisions, which anticipated just such a change, would take effect.

However, the court ruled that LPA terms written in this way would still be ineffective. The judge believed that to allow such wording to stand would only create ‘uncertainty and confusion’, not least as there could be so many different ways in which the law could be changed.

Is there any way to make provisions like these?

Whilst it is not possible to specify when you want your attorneys to assist in your death, you do have to decide when creating a Health and Care LPA, whether you want your attorneys to give or refuse consent to life sustaining treatment on your behalf, if you were unable to make this decision for yourself.

For more information on what this may mean, and the way attorneys are obliged to make decisions, have a look at our factsheets on Acting as an Attorney and Mental Capacity.

Advance Decisions

An alternative to communicating your specific wishes about medical treatment is to make an Advance Decision (sometimes called a ‘Living Will’). This is a way for you to specify situations in which you would want to refuse certain medical treatment if these situations arose in future and you could not decide for yourself.

This does not have to be life-sustaining treatment, but an Advance Decision can be used for that eventuality as well.

Other examples are:

  • Blood transfusions
  • Organ transplants
  • Chemotherapy
  • Nutrition administered other than by mouth

Advance Decisions are legally binding, meaning your decision will take effect and cannot be ‘overruled’ by your family, attorneys or medical practitioners. By contrast, and as noted above, through an LPA it would be down to your attorneys to make the decision for you at the relevant time if this is the option you have chosen.

Both approaches have their benefits, and there is nothing preventing you from having an Advance Decision and an LPA in place at the same time. However, interaction between the two needs to be carefully considered so that any contradictions or confusion is avoided.

We looked at Advance Decisions and life-sustaining treatment in an earlier blog post, which also examined a case involving the withdrawal of such treatment. Have a look at it for more information on using LPAs and Advance Decisions in this way.

Can we help?

At Roche Legal, we are reassuring experts specialising in:

If you would like advice about any of the issues discussed in this article, please contact us.

Roche Legal ©

Roche Legal | rochelegal.co.uk | info@rochelegal.co.uk