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Is the Court of Protection still as protective?

Human rights lawyer Merry Varney discusses the implications of a judgment published by the Court of Protection regarding the involvement of the court in end-of-life care decisions.

Elderly hospital patient
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Merry is a partner in the human rights department.  She has a particular interest in using the law to protect children, vulnerable adults and patients.  She tweets as @merryvarney
The case of a 50-year-old woman, known only as “M” to protect her identity, has been widely covered in the media. It concerns the highly emotive decision to withdraw nutrition from a very sick patient as part of end-of-life care.
 
M had suffered from Huntington’s disease, which damages nerve cells in the brain, for more than 20 years.
 
The case examined whether the Court of Protection actually needed to be involved in the decision at all. The medical professionals and the family agreed the decision was in the best interest of their patient and loved one, but due to their belief that the law required it, the court was asked to rule on the decision. 
 
Mr Justice Jackson, sitting in the Court of Protection, ruled in his judgment published on Wednesday 20 September 2017, that the court's oversight was not necessary where this type of decision is made so longs as medical professionals have:
  • fully consulted with the family; 
  • acted in accordance with the Mental Capacity Act 2005; and 
  • have acted within recognised medical standards.
 
Where there is agreement between everyone and the law is complied with, I think this will be welcomed by families and those campaigning for better end-of-life care. Not having to go to court can allow for swifter action and avoid prolonged suffering for the patient and their family.
 
On the other hand, if these decisions are not brought to court who is examining whether Mr Justice Jackson's criteria are being met?
 
Having been instructed in cases concerning lack of consultation about end-of-life care decisions and lack of adherence to the Mental Capacity Act by medical professionals, I can see why some are concerned by the court's judgment. 
 
Putting it another way, has the Court of Protection - whose responsibility it is to oversee cases concerning our most vulnerable members of society - become a little less protective as a result of this judgment? 
 
I can't help but think there might be a 'half-way house' solution - why not introduce an expedited, paper based, process for court oversight for cases such as M? This would remove the costly court process in part, while retaining the full safety net of the Court of Protection.
 
While I await news on an appeal, I hope the relevant powers that be are ensuring their staff fully understand the Mental Capacity Act and the legal obligations it imposes in healthcare decision making.

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