Abstract
When does the High Court (Family Division) have power to make a life-or-death decision for a person who lacks capacity to decide for themselves? The inherent jurisdiction and its basic principles are described. Power is to grant declaratory relief (in adult cases). Contrast the position where an adult is capable of making an autonomous decision, or the position under the Mental Health Act 1983. Examples are given of recent extensions of the jurisdiction; and prospective changes under the Mental Capacity Act 2005. Particular issues relating to withholding or withdrawing life-sustaining treatment, and the distinction between omissions and positive acts causing death are discussed. When a court decision is needed on withholding life-sustaining treatment to a patient, other than one in PVS, is left unclear. The nature of the test to be adopted in reaching such decisions is described, as are the circumstances in which advance directives refusing treatment are binding, and the significance of views and wishes falling short of an advance directive; an example is given of the dilemmas that can arise.
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