Advance decisions: Peace of mind for everyone

In late 2016, the Court of Protection heard the case of Paul Briggs. As with many cases of its type, there were several parties: Paul’s wife, the Walton Centre NHS Foundation Trust, the Wirral Clinical Commissioning Group, the Official Solicitor, and Mr Justice Charles were all involved in the difficult decision as to whether Paul Briggs’ medical treatment should be withdrawn, knowing that this would result in his death.

In a compassionate judgment given by Charles J, it was held that withdrawing Paul’s medical treatment was in his best interests and Paul has since died. The judgment is worth reading in its entirety as it sets out the struggle experienced by those involved in a lengthy legal battle on the matter of the life or death of an individual.

In an interview with the Mirror, Lindsey Briggs bravely spoke about her experience and strongly advocated the idea that the preparation of an advance decision (sometimes known as a ‘living will’) would have made an enormous difference in Paul’s case. Paul, who was involved in a road traffic accident while riding his motorbike to work, had not prepared an advance decision as to his wishes, but he had made his wishes and feelings known to family and friends. It was these wishes that were taken into account during the court hearing, and these wishes which were ultimately adhered to by the court.

How much heartache would have been avoided, however, if Paul had completed an advance decision? Under sections 24 to 26 of the Mental Capacity Act 2005, the mechanism exists to prepare a legally binding document that means an individual can set out clearly what treatment they would wish to refuse.

As these are legally binding documents, care needs to be taken when preparing them and they should be reviewed regularly. Topics that can be included in an advance decision may include what the person may consider as an intolerable condition, what illnesses they would not want to be treated, and who should be consulted in the event that the advance decision is used. What may be considered as intolerable will, of course, differ from person to person, and so careful consideration of the words used in an advance decision will need to be discussed thoroughly and carefully with anyone considering drawing these up.

It should also be the case that a frank discussion is had with family members about these wishes and feelings, and that the advance decision, once written, is reviewed regularly and is readily available in the event that it is needed.

As practitioners, we are very good at ‘selling’ lasting powers of attorney: data from the Office of the Public Guardian shows that 14,600 LPAs were registered over the last year. While these figures take into account personal applications, there are of course numerous applications being submitted by solicitors.

But what about those cases where people do not want to appoint an attorney for health issues? Perhaps there is no one suitable or this feels like too much of a delegation of power. In this instance, an advance decision can be a very suitable for someone who does not feel that an LPA is appropriate for them.

Careful consideration should therefore be given to the merits and demerits of drawing up an advance decision. These can complement LPAs (although care is needed when drafting to ensure that they do not invalidate each other) and this is an area that practitioners perhaps need to consider more widely. For anyone involved in estate planning, the advance decision is an important tool and one that should be discussed with as much regularity as wills and LPAs.

For Paul and his family, the right decision was made by the court, and it is at times like these that the experience and compassion of our judges really shows through. However, it is hoped, an advance decision would have made the whole situation a lot less public and lengthy. Lindsey Briggs herself has become an advocate for the preparation of advance decisions and perhaps this is a lesson to be learned for those of us advising our clients about preparing for their own future.

‘It will never happen to me’ is something that we often think, but as Paul’s case demonstrates, it can, and the consequences can be devastating. Having an advance decision in place can give peace of mind to everyone.

Heledd Wyn is an associate at Mowbray Woodwards

@MowbrayWoodward www.mowbraywoodwards.co.uk