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This paper comments on the legal analysis in Professor Gillon's recent paper ‘Why I wrote my advance decision to refuse life-sustaining treatment—and why the law on the sanctity of life remains problematic’.1 In his paper Professor Gillon asserts that there is an “obvious conflict between elements in the Code of Practice to the Mental Capacity Act (MCA) and elements in the rules of the Court of Protection, and the judgment of the Supreme Court in Aintree v James on the other hand”,2 the effect of which is—in effect—to impose what is understood to be a legal requirement on doctors to prolong life-sustaining treatment unless the Court of Protection permits otherwise.
This paper, written by a practising barrister and member of the ad hoc Court of Protection Rules Committeei seeks for the benefit of non-lawyers (among whom Professor Gillon numbers himself)3 to dispel some of the fog that has very unhelpfully clouded this particular issue, fog which it is unfortunately right to say that the Court of Protection has perhaps helped to generate. As will become clear, Professor Gillon and I may well end up at a similar place in terms of identifying that there is a problem, but the route by which we reach our conclusions both differs and dictates a different solution.
The key principles
In order to navigate these particular waters, it is necessary to have a clear eye on the various obligations that are in play and also the difference between the substantive law as it applies to clinical professionals and the procedural rules governing the Court of Protection.
The substantive law governing the provision of invasive medical treatment to those lacking the capacity to consent to it is, as Professor Gillon identifies, authoritatively set out in the Supreme Court decision in Aintree v James. …
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