Essay question

“Doctors can easily avoid following advance decisions to refuse life sustaining medical treatment.” Discuss this statement.

Outline answer

You could start your answer by considering the purpose of advance decisions.   Advance decisions are prospective decisions made by competent persons and are designed to apply to future situations in the event that the person loses decision making capacity. If they are valid and applicable they are binding as far as refusal of treatment is concerned to the same extent as a contemporaneous refusal of treatment.  Persons with capacity  may refuse even lifesaving treatment (Re B) whereas adults who lack capacity have decisions made for them that are in their best interests (unless there is a valid and applicable advance decision to refuse treatment.  Since health professionals have a duty to preserve life a valid and applicable advance decision is a mechanism by which this tension may be overcome and a person will retain a level of self-determination in medical decision-making for their future.  People often make advance decisions in order to avoid aggressive medical treatment if this would (in their subjective opinion) lead to a life which they subjectively feel would not be worth living. 

Remember that advance decisions are governed by sections 24 – 26 of the Mental Capacity Act 2005. You should revise these sections and be prepared to specify the legal requirements.  Note that advance decisions must be in writing only if they are intended to refuse life-saving treatment (although in other circumstances there may be evidential issues if there is no written evidence available) (section 24 (6)).  

The two key requirements of an advance decision are that at the time that it is used it must be valid and applicable. You should revise the legal requirements for validity (section 25 (2)) and applicability (sections 25(3) and 25(4) Mental Capacity Act 2005). 

Assuming that at the material time an advance decision is still valid, the next question is whether it is applicable in the specific circumstances of the case.  This is where there is room for advance decisions to be overturned because the circumstances depend largely on the person’s medical condition and clinical situation at that time. It could be argued therefore that although an advance decision is valid in respect of refusal of life sustaining treatment, the condition that was specified in the advance decision is no longer applicable because of specific clinical facts.  In effect, although an advance decision is in place, its final deployment will depend upon the opinion of treating clinicians who must have the reasonable belief that the advance decision is applicable in the circumstances. The end result might be that a decision is influenced more by clinical opinion rather than the patient’s previous wishes.  You would need to consider this possible tension, examine it and comment upon it.

A leading case in this area is Re AK. You should read this case and use the reasoning provided by the court to illustrate your answer.