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Triumph of autonomy

11 Apr 2017

Elizabeth Gibbison, Private Client Lawyer at Hay & Kilner, considers the delicate balance between human dignity and the sanctity of life following M v N (2015).

‘If I ever end up like that, shoot me!’,  said Mrs. N, about her parents living with dementia. So many of us say similar things, but what does it really mean, if we end up in comparable or worse circumstances, and must rely on artificial means to stay alive?

After making this statement, N, once a feisty, proud, self-conscious and well-presented woman, became a sufferer of advanced multiple sclerosis. Her case, brought by her daughter, M, under section 15 of the Mental Capacity Act 2005, explored just this.

The law provides that an adult with capacity has the right to refuse medical treatment. A person with capacity can also make a lasting power of attorney allowing decisions on the receiving of life-sustaining treatment to be made for them.

Advance refusals of life-sustaining treatment must be made in writing, specify the particular treatment in question, be witnessed, and specify that the terms are to apply even if life is at risk. In addition, the creator of the advance refusal must not do anything else later inconsistent with the advance decision. In other words, foresight of all possible scenarios and an unfailing exhibition of dedication to its terms are required; difficult to do.

Pragmatic judgment

In M v N (by her Litigation Friend, the Official Solicitor) and others (2015), M sought a declaration from the Court of Protection determining whether it would be in her mother’s best interests to continue to receive life-sustaining treatment by means of clinically assisted nutrition and hydration (CANH). N’s cognitive abilities were neither definitively considered as being at the level of a vegetative state or a minimally conscious state. She was, however, unable to speak, eat, breathe, make decisions, communicate, or move.

N’s family presented a strong case. Based upon family history and her own previously exhibited wishes, thoughts, feelings, and behaviour, they argued that N would not have wanted to live a life imposed upon her for the sake of living.



This judgment specifically considered the value of spoken advance refusals being communicated through family.

N’s dignity and human freedom were found to overwhelm the argument for further continuation of her life, CANH was to be withdrawn, and the declaration was granted. This was the first time the Court of Protection agreed to withdraw life-sustaining treatment from a person considered to (potentially) be in a minimally conscious state.

There have been other significant judgments, including Re M (2011) and the Bland (1993), Purdy (2009), and Pretty (2002) cases in which this very careful balancing act has had to be considered. This will always be the case as each circumstance is to be carefully considered individually.

It is of note that if a valid advance refusal had been made, the battle for N and her family could have ended long ago.

While N’s case, and similar other recent cases, present a coruscating hope that pragmatism will prevail, the MCA’s requirements must be strengthened and broadened, within the bounds of reason, for autonomy to triumph more often.

At Hay & Kilner, we have a team of specialist Private Client lawyers who can advise on matters such as the care of elderly or vulnerable family members, including advance decisions, preparing a General or Lasting Power of Attorney and Court of Protection issues.

For further information, please contact Elizabeth Gibbison

Call: 0191 232 8345

Email: Elizabeth.Gibbison@hay-kilner.co.uk