Report No. 196

(i) Right of patient to select the treatment that he will receive

It is not correct to say that Justice Munby opined that a doctor is obliged to render treatment which is not clinically indicated, merely because the patient wants it. The GMC's submissions to the following effect are correct:

(a) The doctor, exercising this professional clinical judgment, decides what treatment options are clinically indicated (i.e. will provide overall clinical benefit) for his patient.

(b) He then offers those treatment options to the patient in the course of which he explains to him/her the risks, benefits, side-effects etc. involved in each of the treatment options.

(c) The patient then decides whether he wishes to accept any of those treatment options and, if so, which one. In the vast majority of cases, he will, of course, decide which treatment option he considers to be in his best interest and, in doing so, he will or may take into account other, non-clinical, factors. However, he can, if he wishes, decide to accept (or refuse) the treatment option on the basis of reasons which are irrational or for no reasons at all.

(d) If he chooses one of the treatment options offered to him, the doctor will then proceed to provide it.

(e) If, however, he refuses all of the treatment options offered to him and instead informs the doctor that he wants a form of treatment which the doctor has not offered him, the doctor will, no doubt, discuss that form of treatment with him (assuming that it is a form of treatment known to him) but if the doctor concludes that this treatment is not clinically indicated, he is not required (i.e. he is under no legal obligation) to provide it to the patient although he should offer to arrange a second opinion.

The Court of Appeal, however, reiterated that so far as a competent patient is concerned, if he wanted to be kept alive by ANH, a doctor cannot refuse and if he refuses, it will amount to murder. "Where life depends upon continued provision of ANH, there can be no question of the supply of ANH not being clinically indicated unless a clinical decision has been taken that the life in question should come to an end. That is not a decision that can be taken in the case of a competent patient who expresses the wish to remain alive."

As to when ANH is not clinically indicated, it may be, even in the case of a competent patient, that at the last stage of life. ANH may hasten death rather than prolong it, and at that stage, whether to administer ANH or not, will be a clinical decision which is likely to turn on whether or not it has a palliative effect or is likely to produce adverse reactions. "It is only in this situation that, assuming the patient remains competent, a patient's expressed wish that ANH be continued, might conflict with the doctor's view that this is not clinically indicated."

In such a situation, Lord Phillips stated, disagreeing with Munby J, that the patient's wish is not determinative of the treatment. "Clearly, the doctor would need to have regard to any distress that might be the cause as a result of overriding the expressed wish of the patient. Ultimately, however, a patient cannot demand that a doctor administer a treatment which the doctor considers adverse to the patient's clinical interests. This said, we consider that the scenario we have fast described is extremely unlikely to arise in practise."