LAST WEEK the normally low-profile Official Solicitor stuck his head over the parapet. In a letter to The Times Laurence Oates spoke out on the issue of living wills.

He gave warning that the Mental Capacity Bill, which comes before MPs for its second reading next month, should not be amended to prevent what some Roman Catholic clergy are calling “euthanasia by omission”. In its present form, they fear, the proposals for legally binding living wills will force doctors to remove life-sustaining nursing care (including food and water) and medical treatment.

Under the Bill, people will be able to draw up advance directives about medical treatment so that should they lose mental capacity their wishes to refuse or receive particular medical treatment, subject to certain safeguards, will be honoured.

But Oates told The Times last week that he is happy with the Bill. If changed to prevent such directives, then the new Court of Protection, which is taking over the jurisdiction of such issues, would lack any powers. “Advance decisions to refuse treatment could not be honoured and continuation of future or intolerable treatment would be required indefinitely. This would be a retrograde step and could lead to unnecessary suffering and loss of dignity.

A minority of clergy seem to argue that it’s wrong to withdraw treatment and right to keep people alive artificially, come what may.” But the courts, he argues, through a series of test cases, have established “clear principles that provide some way to resolve these dilemmas”. It is wrong, he believes, to argue that the fundamental importance of life is such that it must be artificially sustained in all circumstances.

Oates is in the front line. He and his legal team are involved in the most sensitive cases that push the boundaries of medical, social and legal ethics. The Official Solicitor’s job is to represent the interests of those who are not able to speak for themselves: patients who have lost capacity, children, babies — people such as Tony Bland, the Hillsborough football disaster victim whose parents asked doctors to switch off his life support, and — in his own time of office — the baby whose HIV-positive mother objected to Camden Council’s seeking of court permission for an Aids test.

In recent months, his office has acted in the case of Leslie Burke, a man with a degenerative brain condition who is challenging General Medical Council guidance that he claims would allow doctors to let him die. Mr Burke, 44, of Lancaster, has cerebellar ataxia and fears that, when his condition deteriorates, doctors could decide that his quality of life is so poor that he should not be kept alive by artificial feeding. The Official Solicitor intervened in the case on behalf of incapacitated patients generally. It is now going to appeal.

In another case, his office acted for two young victims of vCJD, the human variant of “mad cow” disease. The question was whether they could receive untried (and costly) medical treatment and Dame Elizabeth Butler-Sloss, President of the Family Division, ruled that they could. One child died before treatment was given; the other is still being treated.

“Such cases take us into new territory — based, in the Burke case, on questions of adult autonomy, the notion that doctors are not necessarily right and adults should be charge of their destiny,” Oates says. “The second is getting close to the issue of what right people have to insist on particular medical treatment, which may be expensive and ground-breaking. It is quite novel.”

The workload of the Official Solicitor’s office is heavy and is about to rise. The office has two main limbs — Oates is both Official Solicitor and Public Trustee, which involves handling the financial affairs for people who have no one else to do it for them. His office is also responsible for the Child Abduction Unit, which handles all the Government’s responsibilities under the Hague Convention when children are abducted to or from the UK.

The Public Trustee work is in decline by design: government policy is that the Official Solicitor should act only where no one else is willing or able to do so. It handles 1,350 trusts, totalling more than £170 million of clients’ money, but last year the caseload fell by nearly 55 per cent for estates work and 17.6 per cent in trusts work.

But in sharp contrast the Official Solicitor’s work in the Court of Protection has increased greatly. The Official Solicitor represents people without mental capacity in proceedings over their property and affairs before the court, protecting their financial interests and wishes. The number of new cases last year rose by more than 76 per cent to 504 — a product of the ageing population, he says.

The advent of the Human Rights Act has also sharpened people’s awareness over such issues as the right to life or family life — prompting ground-breaking challenges. Even if cases are not specifically brought under the Act, its principles inform the arguments and decisions.

Oates, 58, who took over the role in 1999 after a career in various departments within the Government Legal Service, faces further changes under the Mental Capacity Bill: the Court of Protection will be put on a new statutory footing. “It will have a higher profile and greater accessibility — so that the work could well increase. I think more people will come forward — we shall have to be careful that the new court is not overwhelmed. It should be very much a last resort.”

It is a challenge, he says, to keep abreast of the developments. “But I have a duty to make up my own mind as to what’s best for the people I represent — on the best expert evidence available. It’s a challenge not many others have.”

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