Duncan Lewis

Living wills could be invalidated if question of mental capacity is raised subsequently barristers warn

Date: (19 June 2012)    |    

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The barristers have warned that a court ruling could invalidate a living will and be overturned if the mental capacity of the subject signing the will was subsequently questioned which means that a doctor has to assess the subjects in question at the time they make their decisions of signing the wills.
The Court of Protection last week had ruled in a case that a 32 year old woman (not named) identified as E’ who had not eaten for a year, should be given life saving treatment against the wishes of both her and her family.
The judgment was handed down by Mr Justice Peter Jackson in the Court of Protection.
Paul Bowen, QC, of Doughty Street Chambers, acting for the local authority in the case, said that the ruling is a word of caution to people who suffer from conditions that can deprive them of capacity, where it fluctuates.
A psychiatric assessment has to be made (before making an advanced directive), it would just not be enough to sign the will in front of family members, as the courts could set them aside.
Adam Wagner, a barrister at One Crown Office Row, said the judgement was sensitive and carefully reasoned as the case was clearly an extremely difficult and complex one.
The reasoning which becomes clear from Mr Justice Jackson's ruling is that advance directives require a ‘full, reasoned and simultaneous evidence of mental assessment to be made.
The judge found that despite E and her mother having reasons to believe E had capacity, this was not enough. A formal capacity assessment at the time was required in order to show that E had capacity to make such a momentous decision.