Essay question

“A doctor who respects and complies with a competent patient’s refusal of life sustaining treatment could be guilty of assisting his or her suicide.” Discuss.

Outline answer

If a competent adult requires life sustaining treatment and persistently refuses this, then the logical end point is that the person will die. The key issues that the question raises are firstly, to what extent can a competent person refuse life sustaining treatment and secondly, if a physician respects this decision, would that doctor be assisting that individual to commit suicide?

It is well established in case law that a competent person has a right to refuse treatment, including life sustaining treatment, for any reason whatsoever even if that decision will end inevitably in the death of the person. A competent person’s refusal is respected in law (Re C). Furthermore, in law the default position is that an adult is presumed to have capacity unless evidence suggests to the contrary. Therefore, as long as an adult has capacity and continues to refuse life sustaining treatment, in law this decision must be respected (Re B).

A person with capacity may make an advance decision to refuse treatment in the event that he or she lacks capacity at a time that a decision must be taken. Again, the general principle is that this decision should be respected if the advance decision complies with sections 24 to 26 of the Mental Capacity Act 2005. However, advance decisions that are intended to refuse life-sustaining treatment must comply with specific formal requirements and must be writing and witnessed. Assuming that an advance decision is valid, the next hurdle would be whether it is applicable under the circumstances or not. Only if it is not applicable could a doctor who continues to respect and comply with such a refusal be guilty of wrongdoing.

Assuming that there are no reasons why the refusal should be interfered with, then could the doctor in such a position be guilty of assisted suicide? Remember that suicide is not an illegal act (section 1 of the Suicide Act 1961). However, assisting somebody else to commit suicide could amount to a crime. Note that section 2 of the Suicide Act 1961 prohibits assisting or encouraging another’s suicide, or even attempted suicide, and carries a maximum sentence of 14 years imprisonment. If the refusal comes from an advance decision then, at every stage, the doctor would need to ensure that it remains applicable to the clinical circumstances of that case.

Note that the right to refuse medical treatment is underpinned by the right to autonomy and self-determined choice. You might like to consider the case of Pretty v UK to see how this right is underscored by Article 8 of the European Convention on Human Rights. You might also consider and apply some of the academic literature (Keown) that pertains to this area. 

The acts and omissions doctrine distinguishes between actively killing and passively allowing a person to die. Would respect for treatment refusal under these circumstances amount to an act or an omission? You may wish to look at the House of Lords decision in Bland (and the dicta of Lord Bingham) where there was discussion about acts and omissions and, in particular, whether a doctor could be liable for assisting a patient’s suicide following acquiescence with a competent refusal of life-sustaining treatment. You could also consider Secretary of State v Robb [1995] in your answer. 

Finally, remember to provide a conclusion to your answer on the basis of your overall analysis of the question that has been set.