2015-2016

MEDICAL LAW AND ETHICS: LAW051

END-OF-LIFE DECISIONS

Reading: Jackson, E, Medical Law: Text, Cases, and Materials (3rd ed., Oxford University Press

2013) Chapter 17 Herring, J, Medical Law and Ethics (5th ed., Oxford University Press 2014) Chapter 9 Brazier, M, Medicine, Patients and the Law (5th ed., Penguin 2011) Chapter 19

Finnis, ‘Bland: Crossing the Rubicon?’ (1993) 109 LQR 329 Skene, L, et al, ‘Neuroimaging and the Withdrawal of Life-sustaining Treatment from

Patients in Vegetative State’ (2009) 17 Med L Rev 245. Morris, AE, ‘Selective treatment of irreversibly impaired infants: decision-making at

the threshold’ (2009) 17(3) Med L Rev 347 McLean, A, ‘Advance Directives and the Rocky Waters of Anticipatory Decision

Making’ (2008) 16 Med L Rev 1

Introduction

There are a number of reasons for the increased focus on how law and medicine interact near the end of a persons life.

1. Developments in medical technology such as mechanical ventilators 2. Increased life expectancy and resulting medical problems 3. The status of patient autonomy4. Changes in societal norms5. High profile cases and increased media attention

The law interacts with end-of-life decision making in several ways and we will explore a number of distinctions that are crucial to understanding this topic.

capacity/incapacity (note the relevance of the Mental Capacity Act 2005 here);

and the distinction between positive steps taken to end life (positive acts) and passive conduct which achieves the same result (omissions). See the judgment in Bland below.

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The Shadow of Criminal Liability

Bringing life to an end by whatever means, or withdrawing treatment so that a patient is allowed to die, raises the possibility of criminal liability.

There is no ‘euthanasia-specific’ offence for dealing with defendants who ‘kill’ with good intentions, but the following should be familiar;

i) MurderCommon law crime requiring unlawful killing of a ‘life in being’ with an intention to kill or cause grievous bodily harm.

Re Inglis [2010] EWCA Crim 2637, [2011] 1 WLR 1110 :

A life in being?‘the law does not recognise the concept implicit in the defence statement that Thomas Inglis was "already dead in all but a small physical degree". The fact is that he was alive, a person in being. However brief the time left for him, that life could not lawfully be extinguished. …Thomas's condition made him especially vulnerable, and for that among other reasons, whether or not he might have died within a few months anyway, his life was protected by the law, and no one, not even his mother, could lawfully step in and bring it to a premature conclusion’ (at [38]).

Are acts of compassion, such as mercy killing, treated as murder?"…we must underline that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Subject to well established partial defences, like provocation or diminished responsibility, mercy killing is murder" (at [37]).

What sentence is imposed following a murder conviction?Can murder (or manslaughter) be committed by anything other than a positive act?

ii) Assisting or encouraging suicide Suicide decriminalised by s.1 of the Suicide Act 1961

Although the first party in a suicide is no longer criminalised, those who ‘encourage’ or ‘assist’ them are. See s.2 Suicide Act 1961 (as amended by the Coroners and Justice Act 2009).

Why is assisting a non-crime (suicide) is itself a criminal offence?

Of course, if P is in hospital at the time of suicide, staff might incur civil liability for allowing the suicide to happen: Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360.

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A. PATIENTS WITHOUT CAPACITY

End of life decision making has been explored in the context of two types of patient lacking capacity:

adults, particularly patients in a ‘permanent vegetative state’ or ‘minimally conscious state’.

the very young child.

See General Medical Council, Treatment and Care Towards the End of Life, (2010)

1. Adults Lacking Capacity:

a) Positive Acts Resulting in Death

Whether or not the patient has capacity, there is a a general prohibition on positive acts to end life. This is, however, subject to the application of the ‘double effect principle’ A simple interpretation of double effect is that it is a doctrine which distinguishes between the consequences a person intends and those which are not intended but can be foreseen.

R v Adams (1957) Crim L R 365

‘If the first purpose of medicine, the restoration of health, can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life.’

Is the principle of ‘double effect’ consistent with what you know of criminal law generally? (see e.g., R v Woollin [1999] AC 82 where Lord Steyn confirmed that the mens rea for murder can be inferred where death is a virtually certain consequence of D’s acts, even if this is not their primary purpose.

R v Cox [1992] 12 BMLR 38

‘It was plainly Dr Cox's duty to do all that was medically possible to alleviate her pain and suffering, even if the course adopted carried with it an obvious risk that, as a side effect of that treatment, her death would be rendered likely or even certain.’

Note that in this case, Dr Cox was convicted of attempted murder – why?

Note also research by C. Seale in the UK in 2007-8 suggesting that ‘double effect’ where the intention of administering the drug is ‘partly to end life’ accounts for approximately 2% of deaths attended by doctors (C. Seale, ‘End of Life Decisions in the UK Involving Medical Practitioners.’ (2009) 23 Palliative Medicine 198.

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b) Omissions: Withholding or Withdrawing Treatment

Much of the caselaw on treatment withdrawal involves patients in a permanent vegetative state or a minimally conscious state.

The Permanent Vegetative State (PVS) – A controversial diagnosis?

• Loss of higher brain function – unable to react to environment/complete lack of awareness.

• Brain stem remains active controlling reflex actions such as breathing and digestion, and sleep/wakefulness cycles.

• Very poor prognosis - diagnosis of the VS usually becomes ‘permanent’ at 12 months• To be distinguished from ‘minimally conscious state’ – minimal awareness, may be

able to experience pain/pleasure.

Airedale NHS v Bland [1993] 1 All ER 821

Could ventilation and artificial nutrition and hydration (ANH) be lawfully withdrawn from a patient in a persistent vegetative state?

The short answer: withholding/withdrawal was lawful as long as continuation of treatment was no longer in the patient’s best interests.

The long answer: the HOL judgment proceeded to analyse the question of lawfulness in terms of whether there such withdrawal could expose the doctors to criminal liability for murder:

1. Intention to Kill?Lord Browne-Wilkinson accepted that the mens rea for murder was present.

2. OmissionsGenerally an omission would not give rise to liability for murder, unless D was under a duty to do the act he omitted to do.

Their Lordships were agreed that withdrawal of ANH should be regarded as an omission, therefore no criminal liability would ensue unless there was a duty to provide it.

Lord Goff added that if a third party had switched off life support that would constitute a positive act. What are your views on this distinction?

Comment: Lord Browne-Wilkinson commented on the implications of the passive/active

distinction with some repugnance: ‘How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? …But it is undoubtedly the law.’ (at 885)

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Note: The bright line distinction between positive acts and omissions has since been breached by the Court of Appeal’s decision in Re A (Children: Conjoined Twins) [2000] 4 All ER 961 (see below).

3. Best Interests Qt: Was there a duty to continue to treat Anthony Bland? A: The only duty was to provide medical treatment which was in Bland’s best interests.

Note the way the question is phrased in Bland: Lord Goff – the question was not whether it was in AB’s best interests to die but “whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.”

(This seems reflected in s.4(5) Mental Capacity Act 2005 on best interests: ‘Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death).

i) best interests and futility ‘.…[I]f…the treatment is futile in the sense I have described, it can properly be concluded that it is no longer in the best interests of the patient to continue it’.

Therefore there was no duty to provide medical treatment which was futile.

If withdrawal of ANH was to be lawful, it was necessary to consider whether provision of ANH constituted ‘medical treatment’.

4. Was Artificial Nutrition and Hydration properly described as ‘treatment’?

“I am of the opinion that regard should be had to the whole regime, including the artificial feeding, which at present keeps Anthony Bland alive. That regime amounts to medical treatment and care, and it is incorrect to direct attention exclusively to the fact that nourishment is being provided. In any event, the administration of nourishment by the means adopted involves the application of a medical technique” per Lord Keith.

5. Who determines best interests?On how ‘best interests’ are to be determined, the s.4 checklist from MCA 2005 applies, but Bland remains relevant on this issue.

Note the views expressed in Bland on who decides best interests:

Four of the five judges were in favour of the ‘Bolam test’ being applied.o a) “The decision whether or not the continued treatment and care of a P.V.S. patient

confers any benefit on him is essentially one for the practitioners in charge of his case.” Lord B-W).

o b) Lord Goff was happy to apply Bolam: “Study of this document (BMA guidance)

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left me in no doubt that, if a doctor treating a P.V.S. patient acts in accordance with the medical practice now being evolved by the Medical Ethics Committee of the B.M.A., he will be acting with the benefit of guidance from a responsible and competent body of relevant professional opinion, as required by the Bolam test.”

o c) only Lord Mustill had a problem with best interests being resolved by reference to Bolam: Beyond this point, however, it may be said that the decision is ethical, not medical, and that there is no reason in logic why on such a decision the opinions of doctors should be decisive..”

Note Lord Mustill’s statements: ‘The distressing truth which must not be shirked is that the proposed conduct is not in the best interests of Anthony Bland for he has no best interests of any kind.’ What does this suggest to you about Lord Mustill’s assessment of Bland’s life?

Is there a distinction between ‘witholding’ and ‘withdawing’ treatment?

See also para 33 of General Medical Council, Treatment and Care towards the end of life, (2010) on this.

Developments After Bland

Post-Bland Case Law

1. Frenchay Healthcare NHS Trust v S [1994] 2 All ER 403

2. Re D [1998] 1 FCR 598

3. Re H (adult: incompetent) [1998] 2 FLR 36

‘There is no doubt in the view of all the witnesses who have given evidence that in Dr Wade’s terms the patient is wholly unaware of herself or of her environment and that there is no possibility of any change…I am quite satisfied, having heard the consultant trauma and orthopaedic surgeon, …together with the consultant neurologists, that this is a case of a vegetative state which, although it may not fall precisely within the Royal College guidelines, is and can properly be described as being permanent.’

Role of the Court in Witholding/Withdrawal of treatment cases?

An NHS Trust v M [2005] EWHC 807

‘…It seems to me that the court, as a publicly accountable body, is the proper repository of this responsibility rather than doctors and rather than the family. None of them should feel that they bear the weight of any responsibility arising out of what happens after today.’

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Resolving DisputesSee paras 47 and 48 of GMC, Treatment and Care towards the end of life, (2010) on this.

Court of Protection Practice Direction 9E: APPLICATIONS RELATING TO SERIOUS MEDICAL TREATMENT

This practice direction sets out the procedure to be followed where the application concerns ‘serious medical treatment’ in relation to P.

Matters which should be brought to the court: para 5 - Cases involving any of the following decisions should be regarded as serious medical treatment for the purpose of the Rules and this practice direction, and should be brought to the court: (a) decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state; ……….

For access to the full practice note, see : http://www.publicguardian.gov.uk/docs/09E_-Serious_Medical_Treatment_PD.pdf

Withdrawal of ANH from a patient in a ‘minimally conscious state’:

W v M [2011] EWHC 2443 (COP)

The Court of Protection distinguished her case from Bland saying she had consciousness, was sensate and clinically stable. Although she suffered pain and distress 25-30% of the time, she experienced pleasure and was likely to live for another 10 years.

Q: Applying s.4 MCA was it in her best interests to withdraw ANH?

• A: No – the interest in preservation of life was to be given ‘substantial weight.’• ‘M does experience pain and discomfort, and her disability severely restricts what she

can do. Having considered all the evidence, however, I find that she does have some positive experiences and importantly that there is a reasonable prospect that those experiences can be extended by a planned programme of increased stimulation….I conclude that it is not in M’s best interests for artificial nutrition and hydration to be withdrawn.’

Aintree University Hospitals NHS Foundation Trust v David James and Others [2013] EWCA Civ. 65

In my view, therefore, Peter Jackson J was correct in his approach. Given the genesis of the concepts used in the Code of Practice, he was correct to consider whether the proposed treatments would be futile in the sense of being ineffective or being of no benefit to the patient. Two of the treatments had been tried before and had worked. He was also correct to say that ‘recovery does not mean a return to full health, but the resumption of a quality of life which Mr James would regard as worthwhile’. He clearly did consider that the treatments in question were very burdensome. But he considered that those burdens had to be weighed against the benefits of a continued existence. He was also correct to see the assessment of the

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medical effects of the treatment as only part of the equation. Regard had to be had to the patient's welfare in the widest sense, and great weight to be given to Mr James' family life which was ‘of the closest and most meaningful kind’. (per Lady Hale)

United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16

[t]he treatment does not have to be likely to cure or palliate the underlying condition or return the patient to full or reasonable health, rather it should be capable of allowing the resumption of a quality of life which the patient would regard as worthwhile.

St George’s Healthcare NHS Trust v P & Q [2015] EWCOP 42

when considering the weight to be attached to the various factors a primary consideration and lodestone is the principle of sanctity of life which whilst not absolute must always weigh heavily in the balance.

But what if the patient is not in either a PVS or a minimally conscious state???

R on the application of Burke v General Medical Council [2005] EWCA Civ 1003; [2005] 3 WLR 1132 In Munby J’s view court authorisation was always required for withdrawal of ANH where there was doubt as to capacity, lack of unanimity amongst the medical team, where the patient had requested ANH to continue or resisted withdrawal, or where those with legitimate interest in the care of P asserted withdrawal was not in P’s best interests.

The Court of Appeal disagreed:“The Intensive Care Society informed us that each year approximately 50,000 patients are admitted to intensive care units and of these 30% die in the unit or on the wards before hospital discharge. Most of these die because treatment is withdrawn or limited, albeit in circumstances where the clinicians conclude that such treatment would be likely merely to prolong the process of dying. …The ICS calculates that, if Munby J's criteria were applied, approximately 10 applications a day would have to be made to the courts…. In the event, we do not consider that the judge is right to postulate that there is a legal duty to obtain court approval to the withdrawal of ANH in the circumstances that he identifies” (per Phillips MR).

2. Children: • As a group of patients, babies and very young children raise similar considerations to

those affecting adults without capacity…• But also some additional dilemmas…• And additional criminal liabilities – • s.1 Children and Young Persons Act 1933 (wilful neglect)

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R v Arthur (1981) 12 BMLR 1 note the controversial direction to the jury: ‘I imagine that you will think long and hard before concluding that eminent doctors have evolved standards that amount to committing a crime.’ (per Farquharson J).

How is Dr Arthur’s conduct distinguishable from the procedure approved by the HOL in Bland?

Re B [1981] 1 WLR 1421 Should surgery be administered to baby with Down's Syndrome to remove an intestinal blockage which would otherwise cause death in a few days?

Although decided in the same year as R v Arthur, the approach to the child’s interests in these decisions could not be more different:

‘…at the end of the day it devolves on this court in this particular instance to decide whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die.’

However, ‘There may be cases…of severe proved damage where the future is so uncertain and where the life of the child is so bound to be full of pain and suffering that the court might be driven to a different conclusion.’ (per Templeman LJ).

‘the duty of the court is to decide whether it is in the interests of the child that an operation should take place.’

Re J [1991] Fam 33 13 week premature baby weighing 2.5 lbs with severe mental and physical handicaps. Her prognosis was that she would likely be be deaf, blind and dumb, with limited cognitive development, paralysed from the neck down and unable to interact. She would, however, be able to feel pain.

Was prolongation of life by intensive care in J’s best interests?

‘‘the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child. I say ‘to that child’ because the test should not be whether the life would be tolerable to the decider. The test must be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable.’ (per Taylor LJ).

Re Wyatt (No 3) (A Child) [2005] EWHC 693 could ‘aggressive’ and ‘invasive’ treatment be withheld from Charlotte Wyatt?

‘medical opinion was “unanimous” that invasive medical treatment would not be in Charlotte’s best interests, and Hedley J’s conclusion was therefore unsurprising:

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‘I do not believe that any further aggressive treatment, even if necessary to prolong life, is in her best interests. I know that may mean that she may die earlier than otherwise she might have done but in my judgment the moment of her death will only be slightly advanced.’

Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181Note a movement away from the ‘intolerability’ test:

‘We do not, however, dismiss "intolerability" as a factor altogether. As we have already stated, we agree with Hedley J that whilst "intolerable to the child" should not be seen either as a gloss on or a supplementary guide to best interests, it is, as he said, a valuable guide in the search for best interests in this kind of case.’

See also para 106 of General Medical Council, Treatment and Care towards the end of life, (2010) on treatment of neonates and infants at the end of life.

The Royal College of Paediatrics and Child Health, Withholding or Withdrawing Life Sustaining Treatment in Children (2004)

There are five situations where it may be ethical and legal to consider withholding or withdrawal of life sustaining medical treatment:

1. The “Brain Dead” Child. In the older child where criteria of brain-stem death are agreed by two practitioners in the usual way it may still be technically feasible to provide basal cardio-respiratory support by means of ventilation and intensive care. It is agreed within the profession that treatment in such circumstances is futile and the withdrawal of current medical treatment is appropriate.

2.The “Permanent Vegetative” State” The child who develops a permanent vegetative state following insults, such as trauma or hypoxia, is reliant on others for all care and does not react or relate with the outside world. It may be appropriate to withdraw or withhold life-sustaining treatment.

3.The “No Chance” Situation. The child has such severe disease that life-sustaining treatment simply delays death without significant alleviation of suffering. Treatment to sustain life is inappropriate.

4.The “No purpose” Situation. Although the patient may be able to survive with treatment, the degree of physical or mental impairment will be so great that it is unreasonable to expect them to bear it.

5. The “Unbearable” Situation. The child and/or family feel that in the face of progressive and irreversible illness further treatment is more than can be borne. They wish to have a particular treatment withdrawn or to refuse further treatment irrespective of the medical opinion that it maybe of some benefit.

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In situations that do not fit with these five categories, or where there is uncertainty about the degree of future impairment or disagreement, the child’s life should always be safeguarded in the best way possible by all in the Health Care Team, until these issues are resolved.

Re A (Conjoined Twins) [2001] FLR 267

B. PATIENTS WITH CAPACITY

Does English law recognise a right to die?

As far as the law is concerned, P can take his or her own life, but what if his/her medical condition means he/she would need the help of a doctor, a family member or a friend?

a) Positive acts by the medical profession

Note that the ‘double effect principle’ applies equally to patients with capacity who request action be taken to bring their life to an end:

R v Adams (1957) Crim L R 365

R v Cox [1992] 12 BMLR 38

b) Positive acts outside the ‘double effect’ doctrine

A positive act which is intended to cause P’s death and which does in fact cause P’s death is murder. What of acts falling short of the actus reus of murder - eg if D merely helps P in achieving her stated wish to end her life?

Note: the offence of assisting or encouraging a suicide - s.2 Suicide Act 1961 (as amended by the Coroners and Justice Act 2009)

AG v Able [1983] 3 WLR 845 Was publication of a booklet by the Voluntary Euthanasia Society an offence under s.2?

What about giving lectures on the most effective ways to attempt suicide?

What about helping P to travel abroad to access assisted suicide in a jurisdiction where it is lawful?

Note that under the revised s.2 offence no actual suicide or attempt is necessary:s.2(1) Suicide Act: A person (“D”) commits an offence if— (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide.

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BUT: see s.2(4): no proceedings shall be instituted for an offence under s.2 except by or with the consent of the Director of Public Prosecutions.

Challenging the Prohibition on Assisted Suicide:

Challenging DPP’s refusal to grant immunity from prosecution:

R (Pretty) v DPP (Secretary of State for the Home Department intervening) [2001] UKHL 61; [2002] 1 A.C. 800 Dianne Pretty sought judicial review of DPP’s refusal to agree her husband would not be prosecuted for assisted suicide. She sought to rely on the following to support an argument that the risk of her husband being prosecuted for assisting a suicide was a violation of her human rights:

Article 2 – the right to life…Article 3 – the right to freedom from inhuman and degrading treatment…Article 8 – the right to privacy…

Lord Steyn – ‘Essentially, it must be a matter for democratic debate and decision making by legislatures…’

Pretty v UK [2002] 2 FLR 45; (2002) 35 EHRR 1 The ECtHR largely agreed with the HOL and concluded: ‘many [terminally ill patients] will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. …The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate.’

Was it inevitable that Mrs Pretty’s request would fail?

Challenging lack of guidance on when DPP would exercise discretion to prosecute:

R (Purdy) v Director of Public Prosecutions [2010] Was the DPP’s refusal to publish guidance on how he would exercise his discretion to prosecute s.2 offences an unlawful breach of Purdy’s Article 8 rights?

DPP Policy for Prosecutors in Respect of Cases of Encouraging or Assisting SuicideSee now - http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html - lists sixteen public interest factors in favour of prosecution and six public interest factors indicating there should be no prosecution (below):

A prosecution is less likely to be required if:1. the victim had reached a voluntary, clear, settled and informed decision to

commit suicide;

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2. the suspect was wholly motivated by compassion;3. the actions of the suspect, although sufficient to come within the definition of

the offence, were of only minor encouragement or assistance;4. the suspect had sought to dissuade the victim from taking the course of action

which resulted in his or her suicide;5. the actions of the suspect may be characterised as reluctant encouragement or

assistance in the face of a determined wish on the part of the victim to commit suicide;

6. the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

Note the following statement made in the judgment of Lord Hope in Purdy: ‘It must be emphasised at the outset that it is no part of our function to change the law in order to decriminalise assisted suicide. If changes are to be made, as to which I express no opinion, this must be a matter for Parliament.’

Challenging DPP’s subsequent guidance as being insufficiently clear for the purposes of Article 8(2):

R (on the application of Nicklinson) v DPP [2013] EWCA Civ 961 Did the DPP’s guidance go far enough so that violation of the right to a private life was now ‘in accordance with the law’ as required by Article 8(2)?

‘In our judgment, the Policy is in certain respects not sufficiently clear to satisfy the requirements of Article 8(2) in relation to healthcare professionals’ (at [140]).

c) Omissions: withholding/withdrawing treatment and the patient with capacity

Note material on refusals of life saving treatment/intervention in the earlier topic of consent:

General point is that doctors must comply with a competent adult’s refusal of life-sustaining medical treatment.

British Medical Association – guidance to doctors explains that where a patient is competent, her right to refuse life-sustaining medical treatment must take priority over the doctors’ duty to preserve life.

Re T [1992] 4 All ER 649 (capacity is risk related)Lord Donaldson – ‘the patient’s right of choice exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent.’

BUT

Re AK (Adult: Medical Treatment: Consent) [ 2001] 1 FLR 129‘In the present case the expressions of AK’s decision are recent and are made not on any hypothetical basis but in the fullest possible knowledge on impending reality. I am satisfied

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that they genuinely represent his considered wishes and should be treated as such …Given that his express wishes are clear, the conclusion follows from what I have said that once the conditions which he has stipulated arise it will be unlawful to continue invasive ventilation.’ (Hughes J)

B v An NHS Hospital Trust [2002] 2 All ER 449

Secretary of State v Robb [1995] 1 All ER 677 Acceding to competent patient’s refusal of life saving medical treatment did not constitute assisting a suicide.

Recent Developments in the Law on Assisted Suicide- Lord Falconer’s Assisted Dying Bill

The legal position in other jurisdictions- Netherlands- Oregon- Belgium

Advance Decisions At The End Of LifeNote: under the MCA an ‘advance decision’ is only effective if made by someone aged 18 or over.

On advance decisions refusing life sustaining treatment, refer back to ss.24-26 of the Mental Capacity Act 2005. An advance decision to refuse life sustaining treatment can only be effective:i) if it states clearly that it is to apply even if life is at risk: (s.25(5))ii) if it observes certain formalities (s.25(6))

Advance decisions generally must also be ‘valid’ and ‘applicable’

Validity

S.25 (2): An advance decision is not valid if P— (a) has withdrawn the decision at a time when he had capacity to do so, (b) has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates, or (c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.

On validity, see Re E [2012] EWHC 1639 (COP)

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‘Where there is a genuine doubt or disagreement about the validity of an advance decision, the Court of Protection can make a decision…I consider that for an advance decision relating to life-sustaining treatment to be valid and applicable, there should be clear evidence establishing on the balance of probability that the maker had capacity at the relevant time….I find on the balance of probabilities that E did not have capacity at the time she signed the advance decision in October 2011. Against such an alerting background, a full, reasoned and contemporaneous assessment evidencing mental capacity to make such a momentous decision would in my view be necessary. No such assessment occurred in E's case.’

See also the relevant common law decision in:

HE v A Hospital NHS Trust [2003] 2 FLR 408 – revocation by conduct.

Applicability

s.25(4) An advance decision is not applicable to the treatment in question if—

(a) that treatment is not the treatment specified in the advance decision, (b) any circumstances specified in the advance decision are absent, or (c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them.

W Healthcare NHS Trust v H [2005] 1 WLR 834 A decision on advance directives at common law but still relevant to the MCA provisions:

‘I am of the clear view that …there was not an advance directive which was sufficiently clear to amount to a direction that she preferred to be deprived of food and drink for a period of time which would lead to her death in all circumstances. There is no evidence that she was aware of the nature of this choice, or the unpleasantness or otherwise of death by starvation, and it would be departing from established principles of English law if one was to hold that there was an advance directive which was established and relevant in the circumstances in the present case.’

Default position: patient preferences as part of the ‘best interests’ test:

W v M [2011] EWHC 2443 (COP) – where P has expressed wishes which fall short of a valid and applicable advance directive, the fall back position is s.4(6) of the MCA. On the facts of this case, the P’s expressed views were too imprecise to make a difference to the outcome:

‘I accept, therefore, that when her grandmother and father were in declining health and moved to live in nursing homes, M said on more than one occasion words to the effect that she would not wish to live like that, that she would not wish to be dependent on others, and that she "wanted to go quickly". I also accept the evidence that, when reports

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about Tony Bland appeared on television, M expressed views to the effect that it would be better to allow him to die. But, as conceded on behalf of the Applicant, there is no evidence that M ever specifically considered the question of withdrawal of ANH, or ever considered the question whether she would wish such treatment to be withdrawn if in a minimally conscious state. Furthermore, even if M did specifically consider those questions, there is no way of knowing her current views, having lived in that state for over eight years. Given the importance of the sanctity of life, and the fatal consequences of withdrawing treatment, and the absence of an advance decision that complied with the requirements previously specified by the common law and now under statute, it would be in my judgment be wrong to attach significant weight to those statements made prior to her collapse.

• What of the advance decision in Re AK [ 2001] 1 FLR 129??

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