Report No. 196

Lord Goff went on to further quote the following words of Lord Bingham on informed consent:

"But, in many cases, not only may the patient be in no condition to be able to say whether or not he consents to the relevant treatment or care, but also he may have given no prior indication of his wishes with regard to it. In the case of a child, who is a ward of Court, the Court itself will decide whether medical treatment should be provided in the child's best interests, taking into account medical opinion.

But the Court cannot give its consent on behalf of an adult patient who is incapable of himself deciding whether or not to consent to treatment. I am of the opinion that there is nevertheless no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon a patient, if any such absolute rule were held to exist.

It is scarcely consistent with primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent, that the law should provide no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate, if that was his wish, that he did not consent to it. The point was put forcibly in the judgment of the Supreme Court of Massachusetts in Superintendent of Belchertown State School vs. Saikewicz (1977) 370 N.E. 2d 417 (428) as follows:

"To presume that the incompetent person must always be subjected to what may rational and intelligent persons may achieve is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality."