What happens if you instruct your attorney to assist your suicide in your Lasting Power of Attorney?
In this case, the Public Guardian made nine applications to the Court of Protection because he had received nine Lasting Powers of Attorney with provisions relating to euthanasia or assisted suicide. Some of the LPAs appeared to have "instructions" about euthanasia or assisted suicide while others expressed those thoughts as "preferences". As many of these cases arise every year, the Public Guardian was looking for guidance from the Court about whether these provisions were lawful.
Section 62 of the Mental Capacity Act confirms that nothing in the Act affects the law relating to murder or manslaughter or the operation of Section 2 of the Suicide Act 1961 (which deals with assisting suicide). A person commits an offence under Section 2 of the Suicide Act if they do an act capable of encouraging or assisting the suicide or attempted suicide or another person and that act was intended to encourage or assist suicide or an attempted suicide. The offence can be committed whether or not a suicide or an attempted suicide actually occurs.
Any prosecution under this provision would need the agreement of the Director of Public Prosecutions. There is a code for Crown prosecutors which deals with the factors that might lead to prosecution and the factors that might indicate against. This was revised to become compliant with the European Convention of Human Rights following the Purdy case.
The Judge noted that a person could use an advance decision to refuse medical treatment. However, those decisions are limited to refusal of treatment that might sustain life rather than consent to treatment that might end it sooner. The Judge felt that unless the Lasting Power of Attorney contained a provision which would be ineffective as part of a Lasting Power of Attorney or would prevent it from operating as a valid Lasting Power of Attorney, the Public Guardian is under a statutory duty to register it. He cannot decline because he considers it would not be in the donor's best interests for it to be registered. The Judge said that if a Lasting Power of Attorney contains an instruction requiring the attorney to act in a manner inconsistent with the law it will generally be ineffective as part of the Lasting Power of Attorney. That would mean the Lasting Power of Attorney could only be registered if that provision was severed, ie; taken out.
The Court's position seems to be slightly more lenient when thoughts are expressed as wishes rather than preferences. However, the Public Guardian and the Official Solicitor agreed that a preference that the attorneys carry out an act which on its face would be a criminal offence, should generally be treated as ineffective as part of a Lasting Power of Attorney and therefore should be severed.
What the Lasting Power of Attorneys said:
DA – In the preferences box, DA has written: "Should a vegetative existence arise (i.e. no prospect of a reasonable quality of life is possible) then life is to be terminated." Although inserted in the preferences box, this is expressed in mandatory terms. It is a straightforward instruction to the attorneys to carry out an unlawful act and is therefore ineffective.
LB – In the preferences box, LB has written: "If my life is impaired in such a way that my quality of life would be severely restricted, I would wish my attorneys to make the necessary arrangements which would lead to my demise."
PC1 – In the instructions box, the donor has written: "At the time of writing these instructions, assisted dying is not permitted under UK law but my Attorney must be aware that it is my wish that, when the time comes, I can choose to end my life on my own terms, whether or not this means travelling outside of the UK to a country where assisted dying is legal".
AG – In the preferences box, the donor has written: "If the option is available at the time and my pain and suffering is unbearable and there is no prospect for an improvement, my preference is for active euthanasia to end my life with dignity in peace". In the instructions box, he has written: "Please do NOT try and keep me alive if the end result means I'll be nothing more than a vegetable".
CG – In this case, the donor, who is AG's wife, has used the same words as her husband, but switched boxes. Thus in the preference box she has written "Please do NOT try and keep me alive if the end result means I'll be nothing more than a vegetable" and in the instructions box she has written "If the option is available at the time and my pain and suffering is unbearable and there is no prospect for an improvement, my preference is for active euthanasia to end my life with dignity in peace".
GT – In the preferences box, the donor has written: "In the event of my having a long-term diagnosis for a painful or incapacitating or undignified, but not necessarily terminal, condition, I wish my Attorney to do all possible to transit to Dignitas (in Switzerland) or similar".
MW – In the preferences box, the donor has written: "My attorneys should consider, if possible, aiding the end of my life should I become incapacitated to the extent that I have no ability to affect or comprehend my situation or environment".
The Judge felt that all of these provisions should be severed, ie; should not form part of the Lasting Power of Attorney.
Comment
It is important to remember that you can only give your attorneys the authority the Mental Capacity Act allows. It is possible to give them guidance about what treatment they should and should not consent to on your behalf. That does not allow them to consent to treatment that will end your life. There is a clear difference between the withdrawal of nutrition and hydration, which you can authorise your attorneys to agree to or which you can consent to yourself through making an advance decision and a positive act taken to end life such as that done at an euthanasia clinic.
The old question of whether something is an instruction or a preference was relevant in this case. Thoughts put in the preferences box can be instructions if they are phrased that way and vice versa. In the event, the Court felt that any reference to assisting suicide, whether it was an instruction or a preference in whichever box it sat in, should be severed as it could not properly form part of a Lasting Power of Attorney. The Court also felt that such thoughts should be severed even if they are couched in terms which anticipate that the law might change.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
