2011 09 Incapacity

Saturday 1 October 2011

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W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor), v S and A NHS Primary Care Trust [2011] EWHC 2443 (Fam) (Baker J): The Court of Protection held M who is 52 is in what is known as a "Minimally Conscious State" and should not be allowed to die as a result of withdrawal of nutrition and hydration. Her family argued she was in pain and that artificial feeding and hydration should be withdrawn. The Official Solicitor and the health authority responsible for her care opposed the application. Mr Justice Baker said the case was unique and raised "very important issues of principle". He stated that M had "some positive experiences" and there was a "reasonable prospect" that those experiences could be extended. Mr Justice Baker said: "The factor which does carry substantial weight, in my judgment, is the preservation of life. Although not an absolute rule, the law regards the preservation of life as a fundamental principle." M became severely brain damaged eight-and-a-half years ago. She is unable to talk and had been thought to be in a vegetative state, with no awareness or consciousness of her surroundings. However subsequent tests indicated that she is in a "Minimally Conscious State" such that she is on the edge of awareness but her family wanted life-supporting treatment to be withdrawn, saying she would not want to live "a life dependent on others". The Official Solicitor representing M opposed their application for nutrition to be withdrawn, saying she is "otherwise clinically stable". The PCT responsible for commissioning her care also opposed the application, saying the 52-year-old's life was "not without positive elements". Since the ruling in Bland a total of 43 patients in a persistent vegetative state, or PVS, have died after a judge ordered that treatment could be withdrawn. This case is considered different because M is described as minimally conscious. (Click here for transcript.)

OFT Guidance: The Office of Fair Trading (OFT) has issued guidance for businesses when they are considering granting credit to people who might not have the mental capacity to make informed borrowing decisions. This guidance includes advice on mental capacity and its relevance to a lending/borrowing decisions. Also advice concerning indicators to lenders that borrowers have, or may have, limitations in mental capacity. Click here for full guidance, and click here for summary.

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