Re AK (Medical Treatment: Consent)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Year | 2001 |
| Date | 2001 |
| Court | Family Division |
Medical treatment – Consent to treatment – Artificial ventilation – Nineteen-year-old sufferer from Motor Neurone Disease giving instructions for life support to be switched off once communication impossible for two weeks – Whether it would be lawful to comply with his wishes.
AK was a nineteen-year-old male who suffered from motor neurone disease which was progressive, incurable and fatal. The disease was in an advanced state in AK and the only form of communication left to him was a slight eyelash movement that would shortly be lost to him. He was artificially nourished and was breathing by artificial ventilation through a tracheostomy tube. If he were not on the ventilator natural failure of his respiration would have caused his death some time ago. AK’s mental faculties were unimpaired but he would shortly be unable to communicate in any way. He required 24-hour care and that was provided by Dr S, a team of nurses co-ordinated by Mrs C, a professional carer, and his parents. When Dr S spoke to AK about the impending loss of his only means of communication AK told Mrs C by means of eyelid movement that he would wish his ventilation to be stopped if he could no longer communicate. He confirmed his wishes to Dr S, who explained that the consequence of his wishes would be death and that it could be accompanied by a painkiller which would not in itself induce death but would be used purely for sedation. AK confirmed his wishes on other occasions to Mrs C and his mother, to Dr S and Dr M, an independent doctor who satisfied himself that AK was capable of giving instructions, gave them of his own free will and had a clear understanding of what was involved. With the support of both parents the relevant health trust applied for declarations that it was lawful, in accordance with AK’s wishes, to discontinue artificial hydration, artificial nutrition and artificial ventilation a fortnight after all communication was lost. AK confirmed his wishes to the solicitor appointed to represent him in court.
Held – In the case of an adult patient of full capacity his refusal to consent to treatment must in law be observed. Whilst in an emergency a doctor was entitled to treat a patient by invasive means if necessary where a patient by reason of the emergency was unable to consent, the doctors were not entitled so to act if it was known that the patient, provided that he was of sound mind and full capacity, did not consent and that such treatment was against his wishes. Where an adult without any mental disability was of sound mind and had the capacity to make his own decisions the court had no power to make decisions for him. Care must be taken that anticipatory wishes still represented the wishes of the patient, to investigate how long ago those wishes were made and with what knowledge. It followed that the continuation of invasive ventilation where valid withdrawal of consent had been given, was not simply not the duty of the doctor but would be
unlawful. In the present case the expression of AK’s wishes was recent and was not made on any hypothetical basis but in the fullest possible knowledge of impending reality. There was no doubt that AK had full capacity and that his consent was free and genuine. Accordingly once the conditions which he had stipulated arose it would be unlawful to continue invasive ventilation. Further the European Convention on Human Rights and the impending commencement of the Human Rights Act 1998 were not inconsistent with the decision. Accordingly the application for a declaration of lawfulness would be successful.
Per curiam. An application for a declaration of lawfulness will not be necessary in every such case. The law is clear that a declaration is not really required and the doctors could not have been criticised had they proceeded in accordance with AK’s wishes without the application.
Cases referred to in judgmentAiredale NHS Trust v Bland[1994] 1 FCR 485, [1993] AC 789, [1983] 1 All ER 821, [1993] 2 WLR 316, [1993] 1 FLR 1026, Fam D, CA and HL.
Auckland Area Health Board v AG [1993] 1 NZLR 235, NZ HC.
C (an adult: refusal of treatment), Re[1994] 2 FCR 151, [1994] 1 All ER 819, [1994] 1 WLR 290.
Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385, Que Superior Ct.
St George’s Healthcare NHS Trust v S[1998] 2 FCR 685, [1999] Fam 26, [1998] 3 All ER 673, [1998] 3 WLR 936, [1998] 2 FLR 728, CA.
T (an adult: medical treatment), Re[1992] 2 FCR 861, [1993] Fam 95, [1992] 4 All ER 649, [1992] 3 WLR 782, [1992] 2 FLR 458, CA.
ApplicationThe relevant health trust made an application for declarations that it was lawful in accordance with the wishes of AK, a patient suffering from motor neurone disease, to discontinue the artificial ventilation and artificial nutrition and hydration one fortnight after he lost the ability to communicate. The facts are set out in the judgment.
Sarah Vaughan Jones and Anna de Chassiron (instructed by Mills & Reeve) for the applicant health authority.
Lindsay Davies (instructed by Lorimer Longhurst & Lees) for AK.
Mrs K appeared in person.
Peter Jackson QC for the Official Solicitor.
HUGHES J.AK is 19 and a half years old. He suffers from motor neurone disease and has done since around his seventeenth birthday. Although that disease is unusual in one so young, it is a well recognised condition. Tragically, it is progressive, incurable and fatal. What happens is that the neurological processes which keep the muscles operating progressively fail. That means that not only can the more obvious body movements no longer be made but the same happens to the vital internal muscles which control, for example, the ability to speak, the process of swallowing and, even more fundamentally, the process of breathing. It is in most such cases the inability to breathe which leads to the
inevitable death of the patient. It is thought that there may one day be available a form of preventive treatment, but even if there is it is not at present foreseeable that any treatment will enable existing damage to be reversed.
In the case of AK the disease is in an advanced state and it appears to be present in a particularly aggressive and rapidly moving form. He lost all limb movements some considerable time ago. He has not been able to speak for about two years. He cannot swallow and has for a long time been fed through a tube. For a while he retained some minimal movement in one great toe. That enabled him for as long as it lasted to operate a computer and thus to communicate. From the...
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