Consultation Paper on Bioethics - Law Reform Commission

4.41 The scope of section 25(2)(c) is “potentially remarkably expansive.” 54
An illustration of its potential scope can be seen in HE v A Hospital Trust, 55 a
case decided before the enactment of the Mental Capacity Act 2005. There, a
24-year-old Jehovah‟s Witness, who had been born a Muslim, required a lifesaving
blood transfusion. She had, however, previously written an advance care
directive refusing consent to such treatment “in any circumstances.” Her father
applied for a court declaration that the administration of a blood transfusion to
his daughter was lawful despite the advance care directive. In support of his
application, her father stated that his daughter had become engaged to a
Muslim and promised him to convert to that faith and no longer attend meetings
of the Jehovah‟s Witnesses. Furthermore, his daughter had admitted herself to
a hospital shortly before her collapse and made no reference to being a
Jehovah‟s Witness and to having objections to blood transfusions. On the other
hand, the advance care directive was only two years old and his daughter had
made no attempt to rescind it. Munby J summarised the predicament by stating
that while:
“…too ready a submission to speculative or merely fanciful doubts
will rob advance directives of their utility and may condemn those
who in truth do not want to be treated to what they would see as
indignity or worse, …too sceptical 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.” 56
He held that “the continuing validity and applicability of the advance directive
must be clearly established by clear and convincing evidence,” and concluded
that the father‟s evidence raised “considerable doubt”. In these circumstances,
the directive:
“cannot have survived her deliberate, implemented decision to
abandon that faith and revert to being a Muslim. When the entire
substratum has gone, when the very assumption on which the
advance directive was based has been destroyed by subsequent
events then…the refusal ceases to be effective.” 57
54 Bartlett Blackstone‟s Guide to the Mental Capacity Act 2005 (Oxford University
Press 2005) at paragraph 2.106.
55 HE v A Hospital Trust [2003] EWHC 1017; [2003] 2 FLR 408.
56 Ibid at 415.
57 HE v A Hospital Trust [2003] EWHC 1017; [2003] 2 FLR 408 at 422.
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