Judge rules brain-damaged Muslim should not be resuscitated
A man left brain-damaged after a massive heart attack should not be resuscitated, a High Court judge has ruled, despite the likelihood of him wishing to be were he conscious.
The 55 year-old, who was left in a vegetative state after the incident in July this year, was a devout Muslim who believed in the sanctity of life, his family insisted. Euthanasia, as it is commonly understood, is forbidden under Islam.
During the proceedings, held at the Court of Protection, the man’s son told the court how his father, referred to in case reports as L, had fought to keep his own father alive after he had fallen into a coma years before.
Since his heart attack, the man has been tube-fed and has a catheter fitted. Nevertheless he has shown some signs of improvement, making facial expressions and reacting to a scented scarf bought in Mecca. He has been moved to a normal hospital ward.
Nevertheless, Mr Justice Moylan accepted the views of medical experts, who testified that L’s brain damage was too severe to make resuscitation worthwhile if his condition were to deteriorate again. The judge did not wish to make to place doctors in an “impossible dilemma”.
The NHS Trust caring for L had sought a ruling that not resuscitating would be lawful, but the family had strongly objected.
Summing up, the judge said: “I accept the family’s opinion of what Mr L’s wishes, feelings and beliefs would be….It is the family’s collective view that Mr L would want to receive all possible treatment to prolong his life regardless of the likely … consequences. This coincides with their own view and their understanding of what Islam teaches….I cannot accept the argument – to do so would be effectively to substitute the family’s views and their assessment of Mr L’s likely views for the balancing exercise required by the Mental Capacity Act.”
L’s family are reported to be considering an appeal.
The Mental Capacity Act, introduced in 2005, was an attempt to balance the rightfully recognised freedoms of affected individuals with the need to protect their best interests. The act states unambiguously that it “…does not authorise any person to deprive any other person of his liberty”, but the dividing line between liberty and best interests can get very hazy in cases involving vulnerable individuals.
The elderly are a classic illustration of this dilemma. Recently we looked at the case of one elderly lady who had to go to court to be granted her wish to leave the nursing home she hated and go home instead. She suffered from a number of significant health issues, including Parkinson’s Disease and partial paralysis, and was very vulnerable as a result.
No doubt the local authority who took her into the nursing home against her wishes believed that they were doing the right thing and acting in the lady’s best interests, but they were, effectively, also depriving her of her liberty. The judge, in reaching his conclusion that she should be allowed to go, had to carefully balance her best interests with her understandable desire to have her wishes respected.
‘Do not resuscitate’ orders are another regular source of controversy. In September we reported on the case of a Down’s Syndrome man whose family were outraged when they discovered that doctors had imposed such an order on the man during a stay in hospital without their knowledge.
But it seems to be just as common for doctors to apparently ignore ‘do not resuscitate’ orders, leading to distress and discomfort amongst the elderly in hospital. According to a depressing study by the National Confidential Enquiry into Patient Outcome and Death, medical staff routinely ignore patient’s notes and attempt resuscitate as a matter of course. In 52 cases examined by the researchers, doctors had attempted resuscitation despite the patients stating clearly that they did not want it.
Don’t we all have the right to choose the manner of our departure from this world and die with dignity? Isn’t subjecting an elderly person to inappropriate resuscitation and ignoring their wishes effectively depriving them of their liberty?
Clearly not all medical staff behave in this way. In the case of L, for example, it seems clear the doctors have adopted a realistic and measured approach to the quality of life that could be achieved by any attempt at resuscitation.
Similarly, in the case of D, Re  EWHC 885 (COP) (23 March 2012), a declaration was sought that it would be lawful to withdraw medical treatment from D, a 55 year-old man in a persistent vegetative state. The NHS Trust responsible for his care made the application, with the full support of his family and friends.
The Honourable Mr Justice Jackson made the declaration, saying: “D’s family and friends have spoken of him in the most loving way….They believe that D should now be allowed to die with dignity and with as little suffering as possible. I agree. It is in his best interests and it is what he would want. I grant the declaration sought.”
Of course, Mr L’s family have every right to seek permission to appeal Mr Justice Moylan’s verdict if they believe, as they apparently do, that it did not give sufficient weight to his – or their – religious views. But it seems to me too that, as a society we have great difficulty with death, so often defaulting to a ‘life at any cost’ approach. Sometimes this is religiously motivated, sometimes it is the simple desperation of family members who do not wish to see their loved ones leave. Quite understandable, but I do believe there is a definite case for dignity and quality of life.
Photo by John M Kimmins under a Creative Commons licence.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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