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Report No. 196

Munby J also referred to what Hughes J said in Re AK: 2001(1) FLR 129 (p 134):

"in the case of an adult patient of full capacity, his refusal to consent to treatment or care must in law be observed. It is clear that in an emergency, a doctor is entitled in law to treat by invasive means, if necessary, a patient who, by reason of the emergency, is unable to consent, on the ground that the consent can, in those circumstances, be assumed. It is, however, also clearly the law that the doctors are not entitled so to act if it is known that the patient, provided he was of sound mind and full capacity, has let it be known that he does not consent and that such treatment is against his wishes.

To this extent an advance indication of the wishes of a patient of full capacity and sound mind are effective. Care will of course have to be taken to ensure that such anticipatory declarations of wishes still represent the wishes of the patient. Care must be taken to investigate how long ago the expression of wishes was made. Care must be taken to investigate with what knowledge the expression of wishes was made. All the circumstances in which the expression of wishes was given will, of course, have to be investigated."

Thus, Advance Directive can also create complex legal and factual issues.

(5) In NHS Trust v. T: 2004 EWHC 1279, Charles J was dealing with a lady who had psychological problems and would cut herself for blood- letting. She therefore required blood transfusion but she executed an Advance Directive (attested by a lawyer) refusing blood transfusion 'unless when she is subject to compulsory treatment under the Mental Health Act, 1983'. She gave reasons that blood given was evil and if blood given mixes with hers, the entire blood becomes evil. She stated she was mentally competent while writing the Advance Directive.

When she was in a collapsing state on 8.4.2004, Pauffley J by her order dated 9.4.2004, permitted blood transfusion using minimum force. She recovered on 13.4.2004 and on 16 th her lawyer raised objections to the blood transfusion.

Charles J held that the lady lacked capacity when she executed the Advance Directive.Charles J held that the lady lacked capacity when she executed the Advance Directive.

(6) More recently in GMC v. Burke: (2005) EWCA (Civ) 1003 (CA), Lord Phillips stated that to keep a PVS (permanent vegetative state) patient alive merely because of his advance directive, will violate the Mental Capacity Act, 2005.s He said that under section 26 of this Act, though compliance with reference to advance directive is necessary, still section 4 does no more than require this (the Advance Directive) to be taken into consideration when considering what is in the best interests of a patient.

(7) Obviously, the Act of 2005 has made a change in the law by stating that in the case of patients lacking mental capacity, the Advance Directive is only a matter to be taken into accoun.- but not implicitly obeye.- while considering the best interests of a patient.

From the above, it is clear that even 'Advance Directives' have created serious factual and legal issues in U.K.



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