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'Everyone should have control over the manner of their departure'

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Anyone who watched the latest episode of Silk last Monday will have heard Billy the clerk at fictional chambers Shoe Lane make that statement in a storyline which revolved around the harrowing case of a mother who is put on trial for the murder of her tetraplegic daughter after apparently assisting her in committing suicide.

Silk's dramatisation of this highly emotional and controversial issue brought the matter back into the public eye following the high profile cases of Dianne Pretty, Tony Nicklinson and Daniel James in the past. But what assistance is available for those who find themselves in the impossible position of wishing to refuse life saving treatment or intervention?

Though not in a criminal context, life and death decisions such as these often come before the Court of Protection, a court which addresses and makes decisions about what is in the best interests of those deemed to lack capacity. Only last month the Court upheld a disabed woman's religious right to refuse a life saving blood transfusion (Heart of England Trust NHS Trust v JB (by her litigation friend the Official Solicitor) [2014] EWHC 342)

This case considered factors that need to be taken into account in making this most important of decisions. This was seen in Silk when the character 'Clive Reader QC' questions why a young woman would choose to end her own life. The most important factor in the case was the mental state of the daughter at the time of her death.  There have been numerous cases before the Court of Protection regarding vulnerable individuals who have sought to demonstrate that they have capacity to refuse lifesaving or life altering treatment.

Another  example from recent case law is there when an anorexic sufferers have refused to eat even when this will result in their death. Their capacity to make this decision will often be called into question by those caring for them given it's potentially fatal consequences. It has also been clear from recent case law that unpalatable decisions alone are not enough to show that someone lacks capacity. 

Mental capacity to make such decisions under the Mental Capacity Act 2005 is presumed unless the public body in question can demonstrate that a person lacks capacity. Where there is a dispute as to capacity the Court of Protection can also be called upon to determine this.

If you or family member finds themselves in a situation where their  ability to make life changing or life ending decisions it can often be highly distressing. This distress will be compounded by unfamiliar court proceedings. Our Court of Protection team are able to offer assistance .

By Emma McClure, Civil Liberties team