‘Living wills’ should be compulsory, says leading judge

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Sep 28, 2017
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The judge is overseeing a case of an 80-year-old man in Wolverhampton

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People should be compelled to make “living wills” to set out a statement of wishes in the event that they suffer an incapacitating illness, a High Court judge suggested yesterday.

Mr Justice Francis said that disputes about treatment of patients who have lost capacity would be easier to resolve if the patient had expressed their wishes in advance.

The judge was speaking at a hearing in the Court of Protection in London, which considers issues about people who lack the mental capacity to make decisions. He is overseeing a dispute about the treatment of a pensioner who is in a minimally conscious state.

“It should be compulsory that we all have to make living wills because these cases would be resolved much more easily,” Mr Justice Francis told lawyers. “We all ought to be encouraged to tackle these issues.”

The judge, who is based in the family division of the High Court, said that a public campaign about living wills would be welcome. “If there was some sort of campaign to educate people about these sort of things, I think people would actually do something about it,” he said.

The man at the centre of case, who cannot be identified, is in his 80s. Officials at the Royal Wolverhampton NHS Trust have asked for a ruling on treatment.

Mr Justice Francis said that the man’s family had been in “great conflict” with hospital staff over treatment. He said that there had been “intimidation” and “nurses in tears” in a case that he described as “very, very sad”.

Doctors want Mr Justice Francis to approve the insertion of a feeding tube into the man’s stomach.

Vikram Sachdeva, QC, who represented the man at the hearing, taking instructions from staff at the Official Solicitor and Public Trustee’s office, which helps people who are unable to manage their own affairs, said that he was in favour of such a procedure.

Mr Justice Francis, who made rulings in the case involved the sick baby Charlie Gard this year, called for mediation. He said it should be compulsory in cases where there is a dispute between relatives and medical staff on the right course of treatment.

The hospital was represented by Eloise Power, a senior-junior barrister at Serjeants’ Inn chambers. Lawyers said that family members had decided not to take part.

Last week Mr Justice Peter Jackson said that patients who were being kept alive by artificial nutrition and hydration could be allowed to die, without the case having to be brought before the courts for approval, where both relatives and medical staff agreed.

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