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Court of Protection in first ruling on living wills

The Court of Protection has ruled as valid an advance decision withdrawing life sustaining treatment under the Mental Capacity Act 2005. In the first decision of its kind, the court found after a two-day hearing on 30 April and 1 May 2012 that a ‘living will’ made last year by motor neurone sufferer ‘XB’ was not subject to a time limit.

2 May 2012

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Mrs Justice Theis’s ruling that the 67-year-old man had made a “valid decision” to stop artificial feeding and ventilation when he lost capacity means that XB’s family will now decide when treatment should be withdrawn.

In November last year XB communicated through eye movements to family members and witnesses, including a doctor, a social worker and a carer, an advance decision stating that life-sustaining treatment should be withdrawn under certain circumstances.

However, a carer subsequently questioned whether XB’s wishes had been correctly recorded. There was also an issue that the form recording the decision appeared to show it was to expire on the 2 May 2012.

In making her decision, Mrs Justice Theis emphasied the need for clear language in advance decisions and suggested that organisations offering templates for living wills should consider reviewing them in the light of XB’s case. She also stressed that concerns with advance decisions are investigated promptly and evidence gathered quickly.

Categorised in:

Vulnerable Clients Wills, Trusts & Probate