Changing law: mental capacity legislation
Changing law: mental capacity legislation

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Changing law: mental capacity legislation

2.3 Further controversial case law

There were many other legal cases which considered different aspects of decision making for incapacitated people, but in this section you will look at one of the most important. Although the legal issues were related to those in Re F [1990], the context, although equally controversial, was very different as it involved life-and-death decisions about a tragic situation.

Airedale NHS Trust v Bland [1993] 1 All ER 821 [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)]

The court had to decide whether it would be lawful to remove an artificial feeding tube from a young man in a ‘persistent vegetative state’ (PVS). Note that the medical terminology may have changed since the case was decided, and the condition may now be referred to as ‘permanent vegetative state’.

As in Re F, it was necessary to make a medical decision on behalf of someone who could not decide for him or herself. Also, the family and the health professionals seem to have been largely agreed about what they wished to do, but wanted the legal assurance (and protection from legal risk) of a court decision.

One difference is that the incapacitated person had previously had capacity, but had not made a decision in advance of their condition.

The decision to withdraw a feeding tube from a person in a persistent vegetative state is quite different from a decision about whether a woman with a severe learning disability should be sterilised. However, in both cases, the decision is very controversial, and the person concerned is unable to decide for themself. In the sterilisation case, it is likely that the young woman never had the capacity to make this particular decision. On the other hand, for a person in a persistent vegetative state, it is possible that the person would have thought about what they would want to happen in these circumstances. Of course, thinking about these issues as a healthy person may be very different from the reality of the situation when it arises. If the person has not given the issue any thought in advance, another question may arise as to whether those closest to them (for example, family and friends) might be able to say what the person would have wanted in these circumstances. Also, there is an issue about whether a formal court hearing is required in all cases, or whether some decisions about withdrawing life-sustaining treatment could be made without a court order.

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