In the first case of its kind in England & Wales, the English High Court in W (by her litigation friend, B) v M & Ors has refused a family's application for the withdrawal of treatment to a brain-damaged woman in a minimally conscious state.
The woman was not fully conscious but had some awareness of herself. The question for the Court under English mental capacity legislation was whether it was in her best interests to withdraw hydration and nutrition. Her family submitted that she would not have wanted to be kept alive in that condition. Baker J held that the preservation of life was the fundamental starting point. Having weighed up in detail the advantages and disadvantages of each course of action, he found that it was not in her best interests to withdraw treatment. He held that although she suffered pain and discomfort, she also had some positive experiences.
Baker J took the opportunity to describe it as "alarming" that legal aid was unavailable to the family relations. He stated "it is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration", speculating that this breached Article 6 of the European Convention on Human Rights (right to a fair hearing). He proposed that non means-tested legal aid be provided to family members making such applications, particularly given the fundamental issues of life and death at stake.
Click here to view an article in The Guardian newspaper about the case.
Meanwhile the Public Law Project, instructed by ten English leading legal aid law firms, is seeking to judicially review the decision to make legal aid in community care law available by way of a "telephone gateway". The telephone gateway will be staffed by non-legally qualified people, who will assess the person's eligibility for face-to-face legal advice.
Community care law governs the provision of health and social care services. The instructing law firms are concerned that the very people affected by community care law are in more vulnerable positions and will be disadvantaged in accessing legal aid by telephone. They claim that (a) the UK government has failed to consider properly the impact of its decision on vulnerable people; and (b) the decision to include community care law in this pilot scheme is irrational.
Click here to view a press release by the Public Law Project.
Click here to view a press release by the Law Society of England and Wales and here to view more on the Law Society's Sound off for Justice campaign, which opposes the proposed legal aid cuts.