No to passive euthanasia The need to protect ourselves and our loved ones

NO TO PASSIVE EUTHANASIA

The need to protect ourselves and our loved ones

byJOHN SMEATON

Although several attempts to legalise euthanasia and assisted suicide in the UK have failed in recent years, in reality, the practice of passive euthanasia of those who are seriously ill or mentally incapacitated is growing in hospitals.

Ten years ago, Paul Tully, SPUC’s general secretary at the time, wrote:

“Intentional killing by neglect has become more entrenched in England and Wales since the passing of the Mental Capacity Act 2005 [legislation which SPUC fought very hard to defeat]. This was designed to permit doctors to end the lives of certain seriously ill or disabled people by withholding treatment and care – including even food and fluids in some cases. Without water, people die. Although active euthanasia (such as giving patients a lethal injection) remains rare in our experience, passive euthanasia is a major problem.” SPUC has seen numerous cases where family and friends are powerless to ensure the continuation of basic care and hospital treatment for their incapacitated loved ones. Dying of thirst is a most horrible and painful way to die.

The only certain way to seek to avoid that situation in which all of us could find ourselves is to make appropriate preparations in good time and to put in place a Lasting Power of Attorney for Health and Care Decisions (LPA). A lasting power of attorney (LPA) is a legal document that lets you (the “donor”) appoint one or more people (known as “attorneys”) to make welfare decisions on your behalf, including decisions about medical and clinical treatment, in accordance with the instructions which you have expressed, in the event of your becoming mentally incapacitated, in accordance with sections 2 and 3 of the Mental Capacity Act 2005. To facilitate that, SPUC has consulted the Society’s most dedicated and experienced medical and legal advisers and drafted guidance that sets out clearly what steps need to be taken in good time to protect ourselves and our loved ones for the time

when, inevitably, we all reach that vulnerable stage in our lives.

In brief, the advice relating to completing Form LP1H, on Lasting Power of Attorney Health and Care Decisions, comprises of: • a recommendation to appoint donees of lasting power of attorney for health and welfare

• a statement of instructions for “those responsible for administering my care … in the event of my becoming mentally incapacitated”

• other advice including the importance of consulting a lawyer.

One may presume that in such cases, our next of kin automatically becomes our Lasting Power Attorney, but this is not the case. If one wishes anyone to make a decision on one’s behalf, then one must name them as your attorney. Anyone else will have no authority to decide.

Because the medical and legal language is not always easy to navigate, SPUC has taken particular care that the advice compiled offers the wording that will not permit withholding treatment, or food and water, also considered as treatment in some cases, in the event of becoming seriously ill.

It is increasingly possible, sadly, that the clinical team might claim the right to withdraw or withhold clinically-assisted nutrition and hydration (CANH) on the basis that it is medical treatment and thus a matter purely for the treating clinicians to decide and not the lasting attorney. In this connection, we can recall the words of Lady Black, sitting in the UK Supreme Court, in An NHS Trust and ors v Y and anor [2018] UKSC 46, at paragraph 116:

“However, it was decided as far back as the

Bland case that CANH is in fact to be seen as medical treatment.”

It is therefore essential that the attorney be robust enough to tell the treating clinician that nutrition and hydration must nevertheless be provided, even by other means if necessary and that the patient must not be dehydrated or starved to death. Faced with this insistence by the attorney, the treating clinicians are unlikely then to withdraw or withhold CANH.

Some details of SPUC instruction include:

• Those responsible for administering my care, including nursing staff, family, friends and carers,

and in the case of medical and clinical treatment and nursing care, clinical and nursing staff, must not at any time deprive me of, nor withdraw or withhold from me, basic care, as below defined, and/or ordinary treatment, as below defined. • I hereby make it particularly and expressly clear that the provision of hydration and nutrition, howsoever delivered and/or administered, must not be withdrawn or withheld from me unless to provide it will directly cause my death.

• I must not, at any time, be allowed to die of dehydration or starvation, howsoever attempted, and whether openly or whether by subreption, concealment or clandestine means. I must not, at any time, be unnecessarily deprived of consciousness. I wish to be able to spend as much time as possible with those whom I know and love, particularly my family.

• Although I accept the need for, and indeed I desire appropriate and necessary pain relief,

I specifically refuse intervention of any kind, whether for pain relief or otherwise, to the extent that it will, on the balance of probabilities, hasten my death.

• Additionally, I specifically refuse, reject and decline any intervention which may be, or may be construed as, an act of mercy killing, euthanasia (whether passive or active) or assisted suicide.

• I am of the Catholic faith [possible to insert other options] and I do wish a priest to visit me if and when I am unwell or dying. I specifically insist that my religious wishes and beliefs be respected, that the services of such a representative of my faith not be withheld, withdrawn or impeded by anyone.

The advice also addresses the question of organ donation, procedures for decision making and the event of a deadlock between the Lasting Power Attorney and the medical team.

Registering one’s lasting power of attorney with the Office of the Public Guardian (OPG) takes up to 12 weeks if there are no mistakes in the application. If you would like to receive the advice SPUC has produced, please contact Lucinda Utley at SPUC headquarters at lucindautley@spuc.org.uk to have a copy posted or emailed to you.