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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. …
↵i The article is written in a personal capacity.
↵ii The five categories are as follows: “(i) where there is any doubt or disagreement as to the capacity (competence) of the patient; or (ii) where there is a lack of unanimity amongst the attending medical professionals as to either (1) the patient's condition or prognosis or (2) the patient's best interests or (3) the likely outcome of ANH being either withheld or withdrawn or (4) otherwise as to whether or not ANH should be withheld or withdrawn; or (iii) where there is evidence that the patient when competent would have wanted ANH to continue in the relevant circumstances; or (iv) where there is evidence that the patient (even if a child or incompetent) resists or disputes the proposed withdrawal of ANH; or (v) where persons having a reasonable claim to have their views or evidence taken into account (such as parents or close relatives, partners, close friends, long-term carers) assert that withdrawal of ANH is contrary to the patient's wishes or not in the patient's best interests”.
↵iii The panel of the Court of Appeal included Lord Phillips, Master of the Rolls, the third most senior judge in England and Wales.
↵iv The closest that one can come to a statutory duty is that contained in section 4(5) of the MCA which prohibits a person making a determination as to whether life-sustaining treatment is in the best interests of a person to be motivated by a desire to bring about their death, but that is far from a duty of the nature postulated (for instance) by Mr Justice Munby.
↵v Unlike the Mental Health Act Code of Practice, the MCA Code of Practice does not specify whether ‘should’ carries a specific meaning. In the Mental Health Act Code of Practice, the use of the term ‘must’ reflects legal obligations in legislation (including other legislation such as the Human Rights Act 1998) or case law and must be followed; conversely, where the term ‘should’ is used, departures should be documented and recorded: Mental Health Act Code of Practice (2015), paragraph IX.
↵vi Burke was decided in July 2005 and the Code of Practice was issued by the Lord Chancellor on 23 April 2007 under the provisions of sections 43 and 44 of the MCA.
↵vii There is a “vital and essential distinction between substantive law and procedural law: the function of substantive law is to define, create or confer substantive legal rights or legal status or to impose and define the nature and extent of legal duties, and everyone is entitled to enjoy such legal rights or status but equally is liable to perform or comply with his legal duties; the function of practice and procedure is to provide the machinery or the manner in which legal rights or status and legal duties may be enforced or recognised by a court of law or other recognised or properly constituted tribunal” (Halsbury's Laws of England, Volume 11 (2015), paragraph 4, Meaning of Practice and Procedure). It is clearly established that a practice direction cannot alter the substantive law: see, for instance, Hull and Holderness Magistrates’ Court v Darroch and another  EWHC 4184 (Admin) at paragraph 52.
↵viii It is—incidentally—unclear on why or on what basis withdrawal of CANH from a person in a MCS was included when had not been included in the Code of Practice, or (more materially) considered by an appellate court, unlike the position in relation to PVS.
↵ix For the provisional proposals, see http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/. I am a consultant to the project.
Competing interests None declared.
Provenance and peer review Commissioned; internally peer reviewed.