Advance Refusals of Life‐Sustaining Medical Treatment: The Relativity of an Absolute Right

Abstract

English law gives the competent patient a right to refuse life‐saving treatment, either contemporaneously or in an advance directive. This means that the patient's autonomous choice that in an anticipated situation his/her interests are better served by rejecting life‐saving treatment needs to be respected. However, this right is undermined in practice by the courts' approach of applying a presumption in favour of preserving the patient's life whenever the validity and applicability of an advance directive is questioned. The article argues that the patient's right to refuse life‐saving treatment only receives the respect it deserves if the decision whether or not a valid and applicable advance directive exists in a given case is instead be approached in an unbiased, disinterested way, and it analyses how this can be achieved in different scenarios.

The ‘good death’ and reduced capacity: a literature review

“…Kitzinger and Kitzinger, 2013;Kaufman, 2000). Beyond this, Michalowski (2005) and Heywood (2015) have also identified medico-legal barriers to end-of-life decisions that suggest a need for proof of what the patient wanted. Thus, the prospect of a 'good death' with reduced capacity appears elusive, even when considering the mechanisms in place to enable it.…”

“…The inconsistencies between surrogate and patient beliefs have the potential to result in decisions being made on criteria that the patient may not have wished. While the mechanisms for advance statements or decisions are in place to alleviate this issue, even when they are available, studies show physicians or surrogates contradicting them (see Michalowski, 2005;Heywood, 2015). For those who have had no opportunity to express future treatment decisions, Steinhauser et al's theme of contribution to others by relieving the burden on them, offers no means by which such a death can become 'good'.…”

“…Largely, however, the literature on a 'good death' builds on an underlying assumption that the dying patient is cognisant and capable of rationalising their death. Those instances where Steinhauser et al do acknowledge mental capacity within their model have been met by criticism from numerous authors.Factors such as the subjectivity of substitute decision-makers (Kaufman, 2000) and the complexity associated with medico-legal interpretations of current legislation (Michalowski, 2005) help to highlight deficiencies in the application of principles of a 'good death' in practice. Further specific consideration is required on how to achieve a 'good death' for those with reduced capacity.…”

“…Factors such as the subjectivity of substitute decision-makers (Kaufman, 2000) and the complexity associated with medico-legal interpretations of current legislation (Michalowski, 2005) help to highlight deficiencies in the application of principles of a 'good death' in practice. Further specific consideration is required on how to achieve a 'good death' for those with reduced capacity.…”

Developing a Legal Framework for Advance Healthcare Planning: Comparing England & Wales and Ireland

“…16 The effect of the presumption, as noted by Sabine Michalowski, was that, in life-sustaining situations, advance refusals of treatment were inherently unreliable. 17 The MCA introduced two forms of advance healthcare planning, making provision for both advance refusals of treatment (referred to as 'advance decisions') and lasting powers of attorney (LPAs). Almost ten years after the commencement of the MCA, it is clear that there has been limited uptake on the measures provided for.…”