News: an advance decision to refuse treatment following a suicide attempt

The inquest into the death of Kerrie Wooltorton has recorded a narrative verdict. According to BBC News, “Miss Wooltorton wrote her living will in September 2007, asking for no intervention if she tried to take her own life. She died four days after being admitted to hospital for drinking anti-freeze. . . . The hearing in Norwich on Monday was told Miss Wooltorton had mental capacity and had the right to not consent to medical intervention.”

The BBC reports excerpts from the verdict:

“Even when she was losing consciousness she was absolutely clear in refusing treatment . . . The doctor went over and above what was required of him.”

“He discussed the case with clinical colleagues, took a second opinion from a fellow consultant and sought advice from the medical director.”

“A deliberate decision to die may appear repugnant, but any treatment to have saved Kerrie’s life in the absence of her consent would have been unlawful.”

“She had capacity to consent to treatment which, it is more likely than not, would have prevented her death.”

“She refused that treatment in full knowledge of the consequences and died as a result.”

Advance directives, living wills or advance decisions are decisions made while a person is competent regarding the treatment and care of that person once he or she becomes incompetent. The Journal of Medical Ethics published an interesting article on this topic last year: D Sontheimer. Suicide by advance directive. Journal of Medical Ethics 2008;34:e4. (You will need an Athens account to access this.)

Both Sky News and the BBC reported earlier today that Ms Wooltorton’s ‘living will’ was binding because of the Mental Capacity Act 2005. This is incorrect; the relevant provisions of the Act (ss.24-26) did not come into force until 1st October 2007 and this case occurred in September 2007. The validity of her advance refusal was governed by the common law. (Had it been governed by the Act, the advance decision would not have been valid unless it was witnessed (s.25(6))).

The common law allowed persons to refuse unwanted treatment in advance of incapacity (In re T. (Adult: Refusal of Treatment) [1993] Fam. 95; Airedale NHS Trust v Bland [1993] AC 789; Re C (Adult Refusal of Treatment) [1994] 1 WLR 290; Re AK (Medical Treatment: Consent) [2001] 1 FLR 129; HE v A Hospital NHS Trust [2003] 2 FLR 408). This was not a “grey area”, as described by Andrew Jones to Sky News Online. The following quotation from Lord Goff’s speech in the House of Lords decision in Airedale NHS Trust v Bland [1993] AC 789, 864 makes this clear:

“First, it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so . . . To this extent, the principle of the sanctity of human life must yield to the principle of self-determination . . . and, for present purposes perhaps more important, the doctor’s duty to act in the best interests of his patient must likewise be qualified.  On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B v Hotel-Dieu de Quebec (1992) 86 D.L.R. (4th) 385.  Moreover the same principle applies where the patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred: : see, e.g., In re T. (Adult: Refusal of Treatment) [1993] Fam. 95.”

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One Response to News: an advance decision to refuse treatment following a suicide attempt

  1. […] C, Re MB, Re B, Re T and others) Sheila McLean on advance directives and the Kerrie Wooltorton case Kings College blog on the Wooltorton case Ideals of patient autonomy in clinical decision making: a study on the […]

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