Advance Refusals of Life‐Sustaining Medical Treatment: The Relativity of an Absolute Right
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00568.x |
| Date | 01 November 2005 |
| Published date | 01 November 2005 |
Advance Refusals of Life-Sustaini ng Medical Treatment:
The Relativity of an Absolute Right
Sabine Michalowski
n
English lawgives the competent patient a right to refuse life-saving treatment,either contempor-
aneously or in an advance directive.Thi s means that the patient’s autonomous choice that in an
anticipated situation his/her interests are better served by rejecting life-saving treatment needs to
be respected. However, this right is undermined in practice by the courts’approach of applying a
presumption in favourof preserving the patient’s life whenever the validity and applicability of
an advance directive is questioned. The article argues thatthe patient’s right to refuse life-saving
treatmenton lyreceives the respect it deserves if the decision whether or not avalid and applicable
advance directive exists in a given case is i nstead be approachedin a nu nbiased, disinterested way,
and it analyses how this can be achieved in di¡erent scenarios.
In English law, competent patients have an absolute right to refuse medical treat-
ment, including life-saving treatment.
1
This principle extends to advance treat-
ment refusals that are made for the time of potential future incompetence.
2
The
administration of life-sustaining medical treatment to a competent patient with-
out consent, or to an incompetent patient in disregard of a valid advance refusal,
amounts to a battery.
3
However, a treatment refusal is only valid if the patient,
when making the decision, was (1) competent; (2) informed in broad terms of
the nature and purpose of the procedure; (3) free from controlling outside in£u-
ences; and (4) intended his/her refusal to apply to the circumstances which subse-
quently arose.
4
This approach rests on the view that in this context patient
autonomy overrides the state interest in protecting life,
5
but that before allowing
a refusal of life-sustaining medical treatment to stand, it must be certain that it is
the autonomous decision of a competent person.Thus, in the context of advance
refusals of l ife-sustaini ng medical treatment, the law attempts to ¢nd the right
balance between upholdi ng patient autonomy, on the one hand, and protecting
the lives of personswho can no longer makeautonomous decisions, on the other.
n
Senior Lecturer in Law, University of Essex. I wish to thank the anonymous reviewers for their
constructive comments on earlier drafts of this article.
1ReMB (MedicalTreatment) [1997]2 FLR 426 (CA), 432per Butler-SlossLJ; R (on the application of Burke)
vGeneral Medical Council [2005] EWCA CIV1003, at [31] per Lord Phillips MR. For a discussion
of whether or not the patient’s right to refuse treatment is an absolute right see I. Kennedy and
A. Grubb, Medica l Law (London: Butterworths, 3
rd
ed, 2000) 916^919.
2 The general principle was recognised in Airedale NHS Trust vBland [1993] AC 789 (HL) 864 per
Lord Go¡; ReT (Adult: RefusalofTreatment) [1993] Fam 95(CA) 103 per Lord Donaldson MR;and
recently inW Healthcare NHSTrust vKH [2005] 1WLR 834, at[15] per BrookeLJ. Fora decision i n
which an advancerefusal of li fe-savingtreatment was regarded as valid byan Engli shcourt se e Re
AK (MedicalTreatment:Consent) [2001] 1 FLR 129.
3Bland, n 2 above, 882 per LordBrowne-Wilkinson; ReT,n 2 above,102 per Lord Donaldson MR.
4ReT,n 2 above,115-116 per Lord Donaldson MR.
5Bland, n 2 above, 846 per Lord Go¡; ReT,ibid,112 per Lord Donaldson MR.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(6)MLR 958^982
Where a physician is faced with an incompetent patient in need of life -saving
or life-sustaining medical treatment, and an advance treatment refusal is in place,
many uncertainties with regard to the validity and applicability of the advance
directive can arise. It will, for example, in many cases be impossible to determine
the competence of that patient at the time he/she made the advance directive.
Furthermore, many advance directives will be phrased in broad and general
terms, and it will often be di⁄cult, if not impossible, to evaluate to what degree
the patient had intended the advance directive to cover the situation in which he/
she ¢nds him/herself when a treatment decision has to be made.
Uncertainties and with them a considerable discretion can therefore not be
excludedwhen physiciansor courts are asked to decidewhether or not an advance
directive applies in a given situation. However,from the patient’s perspective, any
error of the physician or the court in this context has far-reaching consequences
and a¡ects importa nt rights and interests. If the patient’s treatment decision is
erroneously regarded as invalid or inapplicable, the patient’s autonomous choices
are disregarded; the patient su¡ers an invasion of his/her bodily integrity in the
form of unwanted medical treatment; and might have to endure a prolonged life
in circumstances he/she regards as undigni¢ed or unbearable. If the decision-
maker errs on the other side, life-saving treatment might be withheld from a
patient who did not validly refuse such treatment, thereby a¡ecting the patient’s
right to life.
Given the signi¢cance of the interests that are at stake, it is essential that the
principles on which the physicians’ or the courts’ decisions in this context are
based protect the patient’s interests as much as possible. The common law
approach, as well as the approach adopted by the Me ntal CapacityAct 2005, is that
uncertaintiesregarding the validity and applicability of an advance refusal of life-
sustaini ng treatment should be resolved by applying a presumption in favour of
preserving life. This paper will question the soundness and consistency of this
approach in the light of the absol ute nature of the competent patient’s right to
refuse life-sustaining medical treatment and present some alternatives foraddres-
sing uncertainties that arise in the contextof advance treatment refusals.
BIAS IN FAVOUROF PRESERVING LIFE
The law’s approach to advance directives that reject life-sustaining medical treat-
ment is mainly based on two distinct principles: patient autonomy, on the one
hand, and the sanctity or inviolability of human life, on the other.
6
The apparent
tension betweenthe two principles that arises whena competent patientrefuses to
consent to life-saving medical treatment has been decided in favour of patient
autonomy. As was clari¢ed in Bland,‘the principle of the sanctity of human l ife
must yield to the principle of self-determination.’
7
However, while ‘the patient
6 For a detailed discussion of the interaction of the principles of autonomya nd sanctityof life i nthe
context of end-of-life decisions, see House of Lords Select Committee o n Assisted Dying for the
TerminallyIl lBil l,Se ssion 2004^2005,paras 39^72.
7 See n 2 above, 846 per Lord Go¡.
Sabine Michalowski
959rThe Modern LawReview Limited 2005
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