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Report No. 196

Munby J finally summarised the law regarding 'advance directives' into seven propositions:

"(i) There are no formal requirements for a valid advance directive. An advance directive need not be either in or evidenced by writing. An advance directive may be oral or in writing.

(ii) There are no formal requirements for the revocation of an advance directive. An advance directive, whether oral or in writing, may be revoked either orally or in writing. A written advance directive or an advance directive executed under seal, can be revoked orally.

(iii) An advance directive is inherently revocable. Any condition in an advance directive purporting to make it irrevocable; any even selfimposed fetter on a patient's ability to revoke an advance directive, and any provision in an advance directive purporting to impose formal or other condition upon its revocation, is contrary to public policy and void. So, a stipulation in an advance directive, even if in writing, that it shall be binding unless and until revoked in writing is void as being contrary to public policy.

(iv) The existence and continuing validity and applicability of an advance directive is a question of fact. Whether an advance directive has been revoked or has for some other reason ceased to be operative is a question of fact.

(v) The burden of proof is on those who seek to establish the existence and continuing validity and applicability of an advance directive.

(vi) Where life is at stake, the evidence must be scrutinized with special care. Clear and convincing proof is required. The continuing validity and applicability of the advance directive must be clearly established by convincing and inherently reliable evidence.

(vii) If there is doubt, that doubt falls to be resolved in favour of the preservation of life."

After laying down the above principles, Munby J relied on the father's statement before Court dated 2nd May 2003 wherein the father set out seven reasons as to why the Advance Directive ceased to be operative:

(i) that since Dec. 2002, his daughter AE rejected her faith as Jehovah's witness and desired to revert back to becoming a Muslim as a condition of her marriage to a Turkish gentleman.

(ii) she stopped attending meeting/congregation or services of Jehovah's witnesses, which she used to frequently attend twice a week. She had promised her fiancé that she would not attend these meetings she has not done so from the beginning of Jan. 2003.

(iii) the consent forms signed by her predated her change of faith and as such should not be relied upon.

(iv) she was admitted in the hospital prior to her collapse but made no mention of the Advance Directive to the medical authorities.

(v) she remained in hospital for 2 days before she was discharged and throughout that time, she did not make any reference to the Advance Directive.

(vi) after re-admission into the hospital, she confirmed to her brother and aunt, that 'she did not want to die'.

(vii) approximately 2 months ago, she informed her family she intended to marry her fiancé and would not allow anything to get in her way and confirmed she would follow Muslim faith.

Relying on these facts, the learned Judge held that the Advance Directive was based solely on the then religious faith of AE as a Jehovah's witness and once that faith ceased to influence her and she turned back to her original Muslim faith, the basis of the Advance Directive stood knocked down. It ceased to be 'effective' as stated by Donaldson MR in In re T. Even otherwise, there is doubt as to whether the Advance Directive continued to be valid and those doubts must be resolved in favour of preservation of life. The best interests of AE also required blood transfusion be given.

Finally, the learned Judge observed that where the facts come to the knowledge of the hospital authorities which require urgent medical intervention in respect of a patient, the hospital authorities and doctors could take expeditious action in the Court, rather than leave to one of the relatives of the patient to move the Court. (quoting Lord Donaldson in In re T (p.115).



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