Consultation Paper on Bioethics - Law Reform Commission

“…a patient of sound mind may, if properly informed, require that life
support should be discontinued…the same principle applies where
the patient‟s refusal to give his consent has been expressed at an
earlier date.” 67
2.30 Of course, as Kennedy and Grubb state, in Re T, the Court of Appeal
avoided giving effect to the patient‟s wishes, and in Bland, the patient had not
expressed any view about the treatment he should receive in the event of
incompetence. 68 Therefore, to date, advance care directives have been held to
be valid and effective in only two cases in England. In Re C, 69 a 68-year old
man with chronic paranoid schizophrenia suffered from the delusion that he was
a world famous doctor who had never lost a patient. He developed gangrene in
his leg, but refused amputation despite the hospital‟s assessment that he would
die immediately if the operation was delayed. He sought an injunction to prevent
the hospital from amputating his leg in the future. Thorpe J was prepared to find
him competent and granted the injunction. In Re AK, 70 a 19-year old patient
suffered from a progressive neuro-muscular disease causing paralaysis. He
informed his carers, by means of an eyelid movement, that he would wish his
artificial ventilation to be stopped if he could no longer communicate. The health
authority applied to the English High Court for a declaration that it would be
lawful, in accordance with AK‟s wishes, to discontinue artificial ventilation,
nutrition and hydration, two weeks after AK lost all ability to communicate.
Hughes J, in granting the declaration, confirmed the “vital nature of the principle
of autonomy” and had “no doubt” of AK‟s capacity, and the validity and
applicability of the directive. 71
(2) Legislative history of the English Mental Capacity Act 2005
2.31 In 1992, Kings College London produced a study on Advance
Directives and AIDS which surveyed the attitudes towards advance directives of
a group of patients with HIV or AIDS and of the healthcare professionals caring
for them. It identified the potential advantages and disadvantages associated
with legislation. 72 First, doctors might take an advance directive seriously if they
were legally obliged to follow it due to a fear of the legal repercussions of non-
67 [1993] 1 All ER 821 at 866b-e per Lord Goff.
68 Kennedy and Grubb Medical Law (3 rd ed Butterworths 2000) at 2036.
69 [1994] 1 WLR 290.
70 [2001] 1 FLR 129.
71 Ibid at 136.
72 Schlyter Advance Directives and AIDS (Centre of Medical Law and Ethics, Kings
College London 1992) at 66-67.
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