Report No. 196

Munby J also refers 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."

This is so far as burden of proof and standard of proof of advance directives and their continued validity and applicability.

On the validity of the advance directive, Munby J sai.- there are no legal requirements of forms. In fact, it need not even be in writing (In Re T). It may be oral or in writing. It should be a firm and settled view of the person and not an offhand remark or casual expression. The same principle applies to a 'revocation of an advance directive'. The popular term 'a living will' is misleading. It is not governed by the (UK) Wills Act, 1837. A written advance directive can be revoked even orally. An irrevocable advance directive is a 'contradiction in terms'. It is a legal impossibility. Munby J stated:

"A free man can no more sign away his life by executing an irrevocable advance directive refusing life-saving treatment than he can sign away his liberty by subjecting himself to slavery. Any condition in an advance directive purporting to make it irrevocable is contrary to public policy and void."

Yet another proposition laid down by Munby J was that if there was an advance directive, none except the person who made it can revoke it and it remains effective if the person has later become incompetent due to his health condition. But, he cannot impose formal or other conditions upon its revocation and they would be void as being contrary to public policy. Hence, paragraph (2d) of the Advance Directive which reads as:

"that the Advance Directive shall remain in force and bind all those treating me unless and until I expressly revoke it in writing"

is void as being contrary to public policy. Revocation in writing is not necessary. It can be oral. The patient could orally say she has renounced her faith as a Jehovah's witness. It will also be invalid if it had stated that it had to be revoked in the presence of two witnesses.

In the present case, AE seems to have been influenced by a wish to return to her original faith (Muslim religion) in order to marry a Muslim. A 'secular system of law founded on the freedom of the individual cannot hold bound to his previous written statement, a patient whose courage fails him as he is wheeled into the operation theatre, whatever he may previously have said in writing'. Any self-imposed factor on a patient's ability to revoke such a document will be contrary to public policy and void. The question is:

"whether an advance directive has been revoked or has, for some other reason, ceased to be operative."

This then becomes a question of fact. On that question, the burden of proof lies in those who assert the continuing validity and applicability of the advance directive.

The patient's change of mind can be evidenced by written or spoken words or may be clear from the patient's action.- for sometimes actions speak louder than words. It may be some change in circumstances. It may be alleged that the patient no longer professes the faith which underlay the advance directive; or that he has since been cured; it may be said that medical science has moved on; it may be said that since then, the patient had married and has children, and now finding himself with more compelling reasons to choose to live even in a severely disadvantaged life.

It may be suggested that the advance directive has been revoked expressly or by conduct inconsistent with the continued validity of the advance directive. Once there is some real reason for doubt, then the burden shifts to those who assert on its continuing validity and applicability. If the doubt is not removed, it gets resolved in favour of the preservation of life.

If there is doubt, the advance directive cannot come in the way of the doctor deciding upon what is in the best interests of the patient. Whether such a doubt has come into play depends on the circumstances. Too skeptical a reaction to well-founded suggestions that circumstances have changed, may turn an advance directive into a death warrant for a patient who in truth wants to be treated. Munby J then stated:

"the longer the time which has elapsed since an advance directive was made, and the greater the apparent changes in the patient's circumstances since then, as I have seen, there will need to be especially close, rigorous and anxious scrutiny"