Consultation Paper on Bioethics - Law Reform Commission

4.03 The decision in W Healthcare NHS Trust v H 4 indicates, however,
that it may be difficult to clearly establish an oral advance decision. The English
Court of Appeal was asked to consider whether conversations conducted some
ten years earlier were sufficient to constitute an advance directive refusing the
reinsertion of a percutaneous gastrostomy tube (Peg tube). The patient was a
59-year old woman suffering from multiple sclerosis requiring 24-hour care to
enable her to survive. She was “conscious but not more than that” and she was
unable to recognise even those who were closest to her in her family. 5 Evidence
was put forward that she had previously said to her daughter, “I don‟t want to be
kept alive by machines”, and to a close friend that she did not want to be a
burden to her daughters or kept alive if she could no longer recognise them.
Despite this, Brooke LJ stated:
“I am of the clear view that…there was not an advance directive
which was sufficiently clear to amount to a direction that she
preferred to be deprived of food and drink for a period of time which
would lead to her death in all circumstances. There is no evidence
that she was aware of the nature of this choice, or the
unpleasantness or otherwise of death by starvation and it would be
departing from established principles of English law if one was to
hold that there was an advance directive which was established and
relevant in the circumstances in the present case, despite the very
strong expression of her wishes which came through in the
evidence.” 6
It is clear, therefore, that while it should be permissible for persons to express
themselves in verbal form, this may give rise to difficulties of scope and
application.
4.04 In 1994, one writter noted that although there was no reason in
principle to disregard oral advance care directives, “it is common to assume that
advance declarations should be required to be made in writing”. 7 The writer
added: “This has significant practical advantages. It provides concrete evidence
of the patient‟s wishes which would reduce the likelihood of disputes. It will also
overcome the weaknesses of memory of those in whom the patient confided.
4 [2005] 1 WLR 834.
5 Ibid at 834.
6 Ibid at 840.
7 Montgomery “Power Over Death: The Final Sting” in Lee and Morgan (eds)
Death Rites: Law and Ethics and the End of Life (Routledge 1994) 37 at 43.
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