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Report No. 196

(A) Advance Directive (create complex problems):

So far as Advance Directives (Living Wills) are concerned, a patient might give or refuse his consent to invasive medical treatment at or before the time immediately before such treatment or he could, even much earlier, decide in writing that such and such treatment should or should not be given. It can also be oral. We are not dealing with such directions given at the time of giving or omitting to give invasive treatment. We are here dealing with directives given at a distant point of time which are called 'Advance Directives'.

We shall refer to complicated factual issues which Advance Directives have brought in U.K.

(1) In Airedale Lord Goff stated that "it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued (Nancy B v. Hotel-Dieu de Quebec: (1992) 86 DLR (4th) 385). Moreover, the same principle applies when the patient's refusal to give consent has been expressed at an earlier date long before he had become unconscious or he became incapable of communicating it.

In such cases, it is necessary to take notice of such prior directives and are applicable in the circumstances which have subsequently occurred. (Re T (Adult): Refusal of Treatment) 1992 (3) WLR 782 = 1992 (4) All ER 649. If a patient had decided not to have medical treatment, the patient is not guilty of suicide and the doctors are not guilty of murder or abetment of suicide.

(2) In Re T above mentioned, which was referred to in Airedale, the patient's mother was a Jehovah's witness and the refusal of the patient for treatment was not accepted by the trial Judge and the Appellate Court because it was not an informed decision and had been influenced by her mother.

In that case, the Court of Appeal held that sometimes it will be advantageous to the doctors to consult the patient's close relatives so that they could give information as to whether the patient was conscious when the advance directive was given.

(3) Re C: 1994 (1) All ER 819, it was held that the previously expressed view of a patient will be an important component in the decision of the doctors and the Court.

(4) HE vs. Hospital NHS and Anr: 2003 EWHC 1017 is an important decision by Munby J on Advance Directives and their continued validity. We get the hint from Airedale that the doctors or Court must see if an earlier directive continues to be applicable or be valid in the circumstances that might occur several years later.

In HE, the patient was born in a Muslim family, her parents separated, her mother became a Jehovah's witness (who did not agree for bloodtransfusion). The patient suffered a heart problem, executed an Advance Medical Directive on 13.2.2001, witnessed by two Church Ministers. On 20.11.2003, she became ill and surgery was felt necessary by the doctors but blood-transfusion was a problem because of the 2 year old Advance Directive.

She was sedated on 20.4.2003 and while her mother and brother opposed blood transfusion, her father, who continued to be a Muslim applied to the Court on 2.5.2003 for permission to give blood transfusion. Munby J permitted blood transfusion on 2.5.2003 when he heard the case and gave judgment on 7.5.2003 notwithstanding the Advance Directive.

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

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