A brief review of the Court of Protection’s rulings on the controversial issue of life sustaining treatment.
The Court of Protection continues to make judgments on life sustaining treatment which invoke both the Mental Capacity Act 2005 and the Human Rights Act 1998.
In this controversial arena, where law meets morality head on, commentators fiercely debate whether the current statutory structure is sufficient and the degree to which decisions in individual cases should be left to the ‘intuition’ (to use Mr Justice Jackson’s term) of the presiding judge.
As in the case of Tony Bland, the fundamental principle to be applied by the courts is the sanctity of life. The first issue to be decided in such cases is whether the person has the requisite mental capacity. If not then they will be unable to make the decision themselves and the Court of Protection will be called upon to decide what medical treatment is in their best interests.
When considering the availability of life sustaining treatment lawyers and the courts must also take into account the Human Rights Act. Judges will be called upon to weigh up the patients rights with what is necessary to prolong life. The prevailing judicial thinking is that preservation of human life should always be the decisive factor.
Among the cases where the issue of life sustaining treatment has been considered by the courts are Re E (Medical treatment: Anorexia) and Airedale NHS Trust v Bland.