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Report No. 196

Lord Goff of Chievely quoted from Lord Bingham's judgment in the Court of Appeal and the following part of that extract from Lord Bingham's Judgment is important:

"in law, Anthony is still alive. It is true that his condition is such that it can be described as a living death; but he is nevertheless still alive. This is because, as a result of development in modern medicine and technology, doctors no longer associate death exclusively with breathing and heart beat, and it has come to be accepted that death occurs when the brain, and in particular the brain stem has been destroyed. (See Prof. Ian Kennedy's paper entitled "Switching off life Support Medicines: The Legal Implications", reprinted in Treat Me Right, Essays in Medical Law and Ethics (1988), especially at pp 351-352) he is still alive as a matter of law.

We are concerned with circumstances in which it may be lawful to withdraw from a patient medical treatment or care by means of which his life must be prolonged by such treatment or care, if available, regardless of the circumstances.

First, it is established that the principle of self determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests of the patient to do so (see Schloendorff v. Society of New York Hospital (1914) 211 NY 125 per Cardozo J; S v. McC (Orse S.) and M (D.S. Intervenur); W vs. W (1972) AC24(43) per Lord Reid; and Sidaway vs. Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital (1985) A.C 871(882) per Lord Scarman.

To this extent, the principle of sanctity of human life must yield to the principle of self-determination (see ante, pp 351 H-352A, per Hoffman L.J) and, for present purposes perhaps more important, the doctor's duty to act in the best interests of his patient must likewise be qualified. On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued, See Nancy B v. Hotel-Dieu de Quebec: (1992) 86 D.L.R. (4 th) 385.

Moreover, the same principle applies where the patient's refusal to give consent has been expressed at an earlier date, before he becomes unconscious or otherwise incapable of communicating it; though in such circumstances, especial care may be necessary to ensure that the prior refusal of consent is still properly to be referred as applicable in the circumstances which have subsequently occurred: See, e.g.

In re T (Adult: Refusal of Treatment) 1992(3) W.L.R. 782. I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his duty, complied with his patient's wishes."

(emphasis supplied)

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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