Health care professionals are usually faced with the question whether it is lawful to administer treatment to a terminally ill patient or withdraw treatment at the request of such a patient. Once a patient can be said to be mentally competent, he has the right to decide what may or may not be done with his body (see for example, the House of Lords’ decision in Chester v Afshar [2005] 1 Ac 134).
A mentally competent patient who seeks to exercise the right to die should be allowed to do so. The fact that a mentally competent patient has the right to decide whether to consent to treatment or refuse treatment was emphasised in Re T (Adult: Refusal to Treatment)[1992] 4 All ER. The case clearly suggests that even where refusal will lead to death the patient must still be allowed to exercise the right to refuse treatment. In essence, it is not for the medical practitioners to consider the rationality of the patient’s decision to refuse treatment. It is enough if the patient’s refusal to undergo medical treatment is free and informed. In Re B (Adult: refusal of Medical Treatment) [2002] 2 FCR 1, doctors’ attempt to stop a patient from refusing treatment was condemned by the court. The doctors had the view that the patient still had a valuable life and therefore were not happy about her decision to refuse treatment. She was paralysed from neck down and had to depend on a ventilator for her life. The doctors did not question the patient’s mental competence. They were simply not willing to perform in accordance with her wishes. The court said it was irrelevant whether the patient’s decision was contrary to her best interests. According to the court, as someone who knew of the alternative options, her request to have the ventilator switched off should be respected by the doctors.
It is settled law that if, at the specific request of the patient, a doctor withdraws a life support machine from the patient he will incur no criminal liability as such conduct does not amount to assisted suicide or murder. This principle was established in Airedale National Trust v Bland [1993] 789. Essentially, what emerged from that case is that a doctor will be liable in battery if he administers treatment which involves any invasive procedure. The doctor can only escape liability if such treatment was administered by the authority of the patient or other lawful authority. Once there is no longer justification for invasive treatment, such treatment must be withdrawn otherwise the doctor will be liable in battery. Furthermore, continuing treatment will be unlawful if a doctor is asked by a patient to withdraw treatment or switch off a ventilator. It is unlawful for a doctor to act to hasten the death of a terminally patient. Thus, regardless of the gravity of the patient’s suffering, a doctor will incur criminal liability if he engages in what is called “voluntary euthanasia”. Section 2(1) of the Suicide Act 1961 makes it an offence for a person to assist another person to commit suicide.
The issue of whether a person has a right to be permitted to be killed or helped to commit suicide was determined in R (Pretty) v DPP[2002] 1 AC 800. Mrs Pretty was suffering from motor neuron disease. She wanted the Director of Public Prosecution to declare that if her husband helped her to commit suicide he would not be prosecuted for assisting a suicide. The DPP refused and Mrs Pretty challenged his decision in the court and the case went to the House of Lords and then to the European Court of Human Rights, where she claimed that English law in this area failed to adequately protect her human rights. The House of Lords held that the decision not to promise immunity to Mr Pretty should he help his wife to die was not, in the circumstances, amenable to judicial review. Mrs Pretty argued that a blanket prohibition on assisted suicide contravened Articles 2, 3, 8, 9 and 14 of the European Convention in Human Rights. This argument was rejected by their Lordships who concluded that Article 2 was intended to protect the sanctity of life. In the European Court of Justice it was also stated that there was no right under the European Convention on Human Rights to be killed or helped to commit suicide. The right to life under Article 2 indicated that the State had an obligation to protect life.
There is no such thing as self-determination when a terminally ill person is mentally incompetent. Doctors are expected to consider what treatment is in the best interest of such a patient. The case of F v West Berkshire Health Authority [1989] 2 All ER 545 illustrates this principle which was applied in the Bland case. The patient, Tony Bland, had been in a coma for over three years and was in a persistent vegetative state (PVS). His medical team, which received the support of his family, went to court to seek declaration that it would be lawful to switch off his life-support machine and to cease providing nutrition and hydration. It was held that since Bland was still alive, withdrawing treatment would not constitute an act but an omission. However, the omission would not breach the duty the doctors owed to Bland. This was because they were only required to provide treatment which was in the best interest of the patient. A body of medical opinion supported withdrawing artificial nutrition and hydration from a patient confirmed in PVS. Therefore, withdrawing treatment was lawful.
Their Lordships made it clear in the Bland case that their decision was restricted to patients in PVS. They added that doctors must not withdraw artificial nutrition and hydration from such a patient unless there was evidence to show, among other things, that diagnosis of irretrievable PVS has been agreed by two independent doctors. Doctors should also seek declaration from the court before discontinuing treatment. Their Lordships’ decision in the case further suggests that in determining such cases the court will have regard to the views of the patient’s immediate family.
Diagnosis of irretrievable PVS must be agreed by two independent doctors before treatment is discontinued. This requirement was apparently not satisfied in Frenchay Health Care Trust v S [1994] 2 All ER 403. However, a declaration was granted that the hospital could lawfully refrain from re-inserting the tube, which was unintentionally removed, to feed the patient. According to the Court, in the emergency that had arisen as a result of the removal of the tube, there was no benefit conferred on the patient by re-inserting the tube. Also, in Re D (Medical Treatment) [1998] FLR 411, the patient had suffered serious brain damage after a road accident. Her feeding tube became disconnected. The Judge was satisfied that there was ‘no evidence of any meaningful life whatsoever’ and held that it was lawful to refrain from re-inserting the tube. The fact that D’s condition did not fully conform to guidelines laid down by the Royal College of Physicians for the diagnoses of PVS was accepted by the judge yet he granted the declaration sought.
Another case in which the patient’s condition did not fully conformed to the Royal College of Physicians guidelines for the diagnosis of PVS but cessation of artificial feeding was authorised is Re H (A Patient) [1998] 2 FLR 36. The patient, H, was a forty-three year old woman who had suffered brain injuries in a car crash. She retained some rudimentary awareness. It was held that it was lawful to discontinue treatment as this was in the best interests of the patient.
It is worth mentioning that in the Bland, S, D and H cases discussed above, the doctors’ decision to discontinue treatment received the support of the patient’s family. Had there been a difference of opinion among the patient’s family, the court’s ruling would have favoured what was considered to be in the patient’s best interests. In Re G (Persistent Vegetative State) [1995] 2 FCR 46, the wife of the patient, who was in PVS, supported the application to withdraw artificial feeding from the patient. The patient’s mother opposed the application. The court rejected the mother’s view on the basis that it was contrary to what was considered to be in the best interests of the patient.
A patient’s right to self-determination does not mean he can instruct his doctors to administer a particular kind of treatment. The recent case of R (Burke) v GMC [2005] 3 FCR 169 attests to this fact. The patient suffered from cerebella ataxia. It was predicted that he would at some point in the future need to be given artificial nutrition and hydration to be kept alive. He was concerned that if he became incompetent, these might be withdrawn and he would die. He sought an order prohibiting the withdrawal of any nutrition and hydration. The court held that a patient had no right to demand a particular kind of treatment either when he is competent or incompetent.
If a terminally ill patient made an advance decision before losing capacity, her wishes in the advance decision regarding treatment would be complied with. Section 25 of the Mental Capacity Act 2005 provides that the directive has to be in writing, signed and witnessed. However, a patient cannot use an advance decision to demand life-shortening treatment to be given.
In conclusion, whether a patient in the dying process will be allowed to exercise the right to self-determination depends on his mental capacity. If the patient is mentally competent, he can decide whether to receive or refuse treatment. If he is incompetent, his wishes, which are clearly stated in his advance decision, must be complied with. In the absence of any advance decision, health care professionals should do what is considered to be in the patient’s best interests. Accordingly, it is correct to assert that the law recognises patient self-determination in the dying process only to some extent.
Bibliography
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Kennedy, I., Grubb, A., (2000), Medical Law: Test and Materials. London: LexisNexis
Stauch, M. et al (2006) Text Cases and Materials on Medical Law, London: Cavendish
