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Report No. 196

As to the law on burden and standard of proof, he held:

(i) While there is a presumption in favour of capacity and the burden to prove incapacity is on those who dispute capacity, there is another burden where there is an advance directive. This burden is on those who rely on the advance directive to prove its existence, its continuing validity and applicability. If there is doubt, that doubt falls to be resolved in favour of preservation of life.

(ii) As to standard of proof of the advance directive, it must be clear and convincing based on balance of probabilities as in civil cases. The more extreme the gravity of the matter in issue, the stronger and more cogent the evidence must be. When life is at stake evidence must be scrutinized with special care. (In re H. (Minors) (Sexual Abuse: Standard of Proof) 1996 AC 563 and dictum of Ungoe.- Thomas J inRe Dellow's Will Trusts: 1964 (1) WLR 451 (455). The continuing validity and applicability of the advance directive must be established by clear convincing and inherently reliable evidence.

(iii) Depending upon the lapse of time and the known changes in the patient's circumstances during that time, the validity of the advance directive has to be examined. See In re T: (Adult: Refusal of Treatment) 1993 Fam 95, Lord Donaldson MR (p 103) where he referred to two 'ys' for the validity of an advance directive or anticipatory choice. He said that there is:

"a conflict between two interests, that of the patient and that of the society in which he lives. The patient's interest consists of his right to self-determinatio.- his right to live his own life, how he wishes, even if it will damage his health or lead to his premature death. Society's interest is in upholding the concept that all human life is sacred and that it should be preserved if at all possible. It is wellestablished that in the ultimate, the right of the individual is paramount.

But this merely shifts the problem where the conflict occurs and calls for a very careful examination of whether, and if so the way in which, the individual is exercising that right. In case of doubt, that doubt falls to be resolved in favour of the preservation of life for if the individual is to override the public interest, he must do so in clear terms".

Munby J refers to Lord Donaldson's statement (at p 114) that an 'advance directive' 'may have been based upon an assumption', in which case, it is necessary to examine the assumption. Lord Donaldson said:

"If the assumption upon which it is based is falsified, the refusal ceases to be effective. The doctors are then faced with a situation in which the patient has made no decision and he by then being unable to decide for himself, they have both the right and the duty to treat him in accordance with what in the exercise of their clinical judgment they consider to be in his best interests."

Munby J refers to Francis & Johnston, 'Medical treatment: Decisions and the Law' (Ed 2001) (para 1.29) that a patient's consent to treatment will not survive a material change of circumstances. In the same way, says Munby J that, a patient's anticipatory refusal to treatment will not survive a material change of circumstances. He quotes Lord Goff in Airedale (at p 864) where it is stated that an advance directive must be considered with 'especial care'. "Especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred."



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




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