On Boxing Day 2017, former Home and Away actress, Jessica Falkholt, her 21-year-old sister Annabelle and their parents Lars and Vivian were driving home from Christmas celebrations when their car was hit head-on on the Princes Highway at Mondayong in New South Wales, Australia.
Lars and Vivian were killed instantly, as was the driver of the car who ploughed into them. Passers-by pulled Jessica and Annabelle out of the car before it exploded. Annabelle died three days later. Jessica, consider one of Australia’s rising stars, received surgery to remove part of her skull and a kidney and remained in a coma. Three weeks after the accident, the family agreed to turn Jessica’s life-support off. She passed away six days later.
Jessica Falkholt’s family were fortunate in some respects – they were able to let Jessica pass away naturally. Contrast this with the story of a British woman, Polly Kitzinger, who, like Jessica, suffered devastating injuries following a car crash. Polly’s family was unable to convince medical staff that she would not want to be kept alive if living meant she required 24-hour care. Unfortunately, because she did not have a Living Will, a document which lays down a person’s wishes regarding how and when medical intervention should cease, doctors refused to let her die. She now lives in a care home, and although she is no longer on a feeding tube, she will never be able to make her own choices or live independently. And although her family know this is not what she would have wanted, they were powerless to communicate this to doctors.
The moral paradox of medical advancement
When it comes to health and wellbeing, there is no better time to be alive. Accidents and diseases which would have brought about certain death 30 years ago are now survivable. But just because someone is alive, does not mean they are ‘living’ in the way they would have wanted.
Atul Gawande discusses this in his brilliant book Being Mortal. Discussing people who are in old age, he writes:
“Our reverence for independence takes no account of the reality of what happens in life: sooner or later, independence will become impossible. Serious illness or infirmity will strike. It is as inevitable as the sunset. And then a new question arises: If independence is what we live for, what do we do when it can no longer be sustained?”
Advances in medical science mean that the old and young can be kept alive in circumstances where, in the past, death would have been inevitable. But at what cost are these people living? We now have to ask ourselves wider questions that go beyond “do I want life-support switched off if I will be doomed to live in a vegetable state” to “how many rounds of chemotherapy do I wish to endure” or “do I want to be resuscitated, regardless of the quality of life I may have to ensure should I survive”?
The only way for a person to communicate their wishes, should they be incapacitated, is via a Living Will (also known as an Advanced Decision), or a health and wellbeing Lasting Power of Attorney (LPA).
Why are doctors unwilling to always trust what the family say the patient would want?
Medical staff have to make decisions every day about patient health. And their main objective is to keep people alive. To achieve this, a treatment may be available, but it would not necessarily prolong life by any great degree or even ease pain. However, if the patient consents to the treatment, doctors are obliged to go ahead, even if it risks a prolonged and terrible death for the patient.
The pain this scenario can cause was highlighted in the case of Director of Legal Aid Casework and others v Briggs  EWCA Civ 1169. PC Paul Briggs sustained a traumatic brain injury in a road traffic accident in July 2015 and was in a minimally conscious state. There was a disagreement between PC Brigg’s wife, Lindsey Briggs, and the clinical team as to which course of action would be in PC Briggs’ best interests – whether or not to continue giving clinically assisted nutrition and hydration (CANH). (PC Briggs had not made an Advance Decision or appointed an attorney under a welfare LPA.)
PC Brigg’s wife Lindsey had told the Court of Protection treatment should be stopped “given his previously expressed wishes” and he should be allowed to die. However, doctors said there was “potential” for PC Briggs to come out of his semi-conscious state.
Mr Justice Charles ruled that PC Briggs should be taken off life-support and placed into palliative care.
The reason PC Briggs widow had to ensure 10 heart-breaking months of legal battles was at the time, the 2005 Mental Capacity Act Code of Practice ruled only the Court of Protection could decide on withdrawing treatment if the patient was in a permanently vegetative state, or if there were doubts over further treatment being in the patient’s interest in the absence of anything documenting the patient’s wishes.
Following the case, the British Medical Association published new guidance which stated more emphasis will be placed on listening to the family and their view of the patient’s wishes. Doctors will now no longer need to seek court approval to withdraw clinically assisted nutrition and hydration if the family and medical team are in agreement.
Obtaining an Advanced Decision
To save your family having to suffer the devastation of going to court to fulfil your wishes, it is crucial to draw up an Advanced Decision or a health and welfare LPA. An Advanced Decision can stipulate if you wish to refuse life-sustaining treatment such as ventilation, CPR or antibiotics. A health and welfare LPA vests power in someone you have chosen to make the decision regarding receiving life-sustaining treatment on your behalf.
Either of these documents can ensure your wishes are expressed in advance, while you can make them. It is perhaps unfortunate that in our society, which promotes health and youth at all costs, we tend to avoid any discussion regarding death, which like it or not, is our ultimate fate for all of us. Documenting your wishes or giving someone you trust the power to make decisions on your behalf may mean the difference between a ‘good death’ and a life you never wanted to endure.
Hart Reade Solicitors are a full-service law firm with offices in offices in Eastbourne, Hailsham, Polegate and Meads. We hold a Lexcel accreditation from the Law Society of England and Wales, and are members of The Association of Lifetime Lawyers. To make an appointment with one of our private client solicitors about creating an LPA or an Advance Decision, please phone our office on 01323 727 321.
Please note, this article does not constitute legal advice.