2015-2016

MEDICAL LAW AND ETHICS: LAW051

END-OF-LIFE DECISIONS
Reading:
Jackson, E, Medical Law: Text, Cases, and Materials (3rd ed., Oxford University Press
2013) Chapter 17
Herring, J, Medical Law and Ethics (5th ed., Oxford University Press 2014) Chapter 9
Brazier, M, Medicine, Patients and the Law (5th ed., Penguin 2011) Chapter 19

Finnis, Bland: Crossing the Rubicon? (1993) 109 LQR 329

Skene, L, et al, Neuroimaging and the Withdrawal of Life-sustaining Treatment from
Patients in Vegetative State (2009) 17 Med L Rev 245.
Morris, AE, Selective treatment of irreversibly impaired infants: decision-making at
the threshold (2009) 17(3) Med L Rev 347
McLean, A, Advance Directives and the Rocky Waters of Anticipatory Decision
Making (2008) 16 Med L Rev 1

Introduction
There are a number of reasons for the increased focus on how law and medicine interact near
the end of a persons life.
1.
2.
3.
4.
5.

Developments in medical technology such as mechanical ventilators

Increased life expectancy and resulting medical problems
The status of patient autonomy
Changes in societal norms
High profile cases and increased media attention

The law interacts with end-of-life decision making in several ways and we will explore a
number of distinctions that are crucial to understanding this topic.

capacity/incapacity (note the relevance of the Mental Capacity Act 2005 here);

and the distinction between positive steps taken to end life (positive acts) and passive
conduct which achieves the same result (omissions). See the judgment in Bland
below.

The Shadow of Criminal Liability

Bringing life to an end by whatever means, or withdrawing treatment so that a patient is
allowed to die, raises the possibility of criminal liability.
There is no euthanasia-specific offence for dealing with defendants who kill with good
intentions, but the following should be familiar;
i) Murder
Common law crime requiring unlawful killing of a life in being with an intention to kill or
cause grievous bodily harm.
Re Inglis [2010] EWCA Crim 2637, [2011] 1 WLR 1110 :
A life in being?
the law does not recognise the concept implicit in the defence statement
that Thomas Inglis was "already dead in all but a small physical degree".
The fact is that he was alive, a person in being. However brief the time left
for him, that life could not lawfully be extinguished. Thomas's condition
made him especially vulnerable, and for that among other reasons, whether
or not he might have died within a few months anyway, his life was
protected by the law, and no one, not even his mother, could lawfully step
in and bring it to a premature conclusion (at [38]).
Are acts of compassion, such as mercy killing, treated as murder?
"we must underline that the law of murder does not distinguish between
murder committed for malevolent reasons and murder motivated by
familial love. Subject to well established partial defences, like provocation
or diminished responsibility, mercy killing is murder" (at [37]).
What sentence is imposed following a murder conviction?
Can murder (or manslaughter) be committed by anything other than a positive act?
ii) Assisting or encouraging suicide
Suicide decriminalised by s.1 of the Suicide Act 1961
Although the first party in a suicide is no longer criminalised, those who encourage or
assist them are. See s.2 Suicide Act 1961 (as amended by the Coroners and Justice Act
2009).
Why is assisting a non-crime (suicide) is itself a criminal offence?
Of course, if P is in hospital at the time of suicide, staff might incur civil liability for allowing
the suicide to happen: Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360.

A. PATIENTS WITHOUT CAPACITY

End of life decision making has been explored in the context of two types of patient lacking
capacity:
adults, particularly patients in a permanent vegetative state or minimally conscious
state.
the very young child.
See General Medical Council, Treatment and Care Towards the End of Life, (2010)
1. Adults Lacking Capacity:
a) Positive Acts Resulting in Death
Whether or not the patient has capacity, there is a a general prohibition on positive acts to end
life. This is, however, subject to the application of the double effect principle
A simple interpretation of double effect is that it is a doctrine which distinguishes between the
consequences a person intends and those which are not intended but can be foreseen.
R v Adams (1957) Crim L R 365
If the first purpose of medicine, the restoration of health, can no longer be
achieved, there is still much for a doctor to do, and he is entitled to do all that is
proper and necessary to relieve pain and suffering, even if the measures he takes
may incidentally shorten life.
Is the principle of double effect consistent with what you know of criminal law generally?
(see e.g., R v Woollin [1999] AC 82 where Lord Steyn confirmed that the mens rea for murder
can be inferred where death is a virtually certain consequence of Ds acts, even if this is not
their primary purpose.
R v Cox [1992] 12 BMLR 38
It was plainly Dr Cox's duty to do all that was medically possible to alleviate
her pain and suffering, even if the course adopted carried with it an obvious risk
that, as a side effect of that treatment, her death would be rendered likely or even
certain.
Note that in this case, Dr Cox was convicted of attempted murder why?
Note also research by C. Seale in the UK in 2007-8 suggesting that double effect where the
intention of administering the drug is partly to end life accounts for approximately 2% of
deaths attended by doctors (C. Seale, End of Life Decisions in the UK Involving Medical
Practitioners. (2009) 23 Palliative Medicine 198.

b) Omissions: Withholding or Withdrawing Treatment

Much of the caselaw on treatment withdrawal involves patients in a permanent vegetative
state or a minimally conscious state.
The Permanent Vegetative State (PVS) A controversial diagnosis?

Loss of higher brain function unable to react to environment/complete lack of

awareness.
Brain stem remains active controlling reflex actions such as breathing and digestion,
and sleep/wakefulness cycles.
Very poor prognosis - diagnosis of the VS usually becomes permanent at 12 months
To be distinguished from minimally conscious state minimal awareness, may be
able to experience pain/pleasure.

Airedale NHS v Bland [1993] 1 All ER 821

Could ventilation and artificial nutrition and hydration (ANH) be lawfully withdrawn from a
patient in a persistent vegetative state?
The short answer: withholding/withdrawal was lawful as long as continuation of treatment
was no longer in the patients best interests.
The long answer: the HOL judgment proceeded to analyse the question of lawfulness in terms
of whether there such withdrawal could expose the doctors to criminal liability for murder:
1. Intention to Kill?
Lord Browne-Wilkinson accepted that the mens rea for murder was present.
2. Omissions
Generally an omission would not give rise to liability for murder, unless D was under a duty
to do the act he omitted to do.
Their Lordships were agreed that withdrawal of ANH should be regarded as an omission,
therefore no criminal liability would ensue unless there was a duty to provide it.
Lord Goff added that if a third party had switched off life support that would constitute a
positive act. What are your views on this distinction?
Comment:
Lord Browne-Wilkinson commented on the implications of the passive/active
distinction with some repugnance: How can it be lawful to allow a patient to
die slowly, though painlessly, over a period of weeks from lack of food but
unlawful to produce his immediate death by lethal injection, thereby saving his
family from yet another ordeal to add to the tragedy that has already struck
them? But it is undoubtedly the law. (at 885)

Note: The bright line distinction between positive acts and omissions has since
been breached by the Court of Appeals decision in Re A (Children:
Conjoined Twins) [2000] 4 All ER 961 (see below).

3. Best Interests
Qt: Was there a duty to continue to treat Anthony Bland?
A: The only duty was to provide medical treatment which was in Blands best interests.
Note the way the question is phrased in Bland:
Lord Goff the question was not whether it was in ABs best interests to die but whether it
is in the best interests of the patient that his life should be prolonged by the continuance of
this form of medical treatment or care.
(This seems reflected in s.4(5) Mental Capacity Act 2005 on best interests: Where the
determination relates to life-sustaining treatment he must not, in considering whether the
treatment is in the best interests of the person concerned, be motivated by a desire to bring
about his death).
i) best interests and futility
.[I]fthe treatment is futile in the sense I have described, it can properly be concluded
that it is no longer in the best interests of the patient to continue it.
Therefore there was no duty to provide medical treatment which was futile.
If withdrawal of ANH was to be lawful, it was necessary to consider whether provision of
ANH constituted medical treatment.
4. Was Artificial Nutrition and Hydration properly described as treatment?
I am of the opinion that regard should be had to the whole regime,
including the artificial feeding, which at present keeps Anthony Bland alive.
That regime amounts to medical treatment and care, and it is incorrect to
direct attention exclusively to the fact that nourishment is being provided.
In any event, the administration of nourishment by the means adopted
involves the application of a medical technique per Lord Keith.
5. Who determines best interests?
On how best interests are to be determined, the s.4 checklist from MCA 2005 applies, but
Bland remains relevant on this issue.
Note the views expressed in Bland on who decides best interests:

Four of the five judges were in favour of the Bolam test being applied.
o a) The decision whether or not the continued treatment and care of a P.V.S. patient
confers any benefit on him is essentially one for the practitioners in charge of his
case. Lord B-W).
o b) Lord Goff was happy to apply Bolam: Study of this document (BMA guidance)
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left me in no doubt that, if a doctor treating a P.V.S. patient acts in accordance with
the medical practice now being evolved by the Medical Ethics Committee of the
B.M.A., he will be acting with the benefit of guidance from a responsible and
competent body of relevant professional opinion, as required by the Bolam test.
o c) only Lord Mustill had a problem with best interests being resolved by reference to
Bolam: Beyond this point, however, it may be said that the decision is ethical, not
medical, and that there is no reason in logic why on such a decision the opinions of
doctors should be decisive..
Note Lord Mustills statements: The distressing truth which must not be shirked is that the
proposed conduct is not in the best interests of Anthony Bland for he has no best interests of
any kind. What does this suggest to you about Lord Mustills assessment of Blands life?
Is there a distinction between witholding and withdawing treatment?
See also para 33 of General Medical Council, Treatment and Care towards the end of life,
(2010) on this.
Developments After Bland
Post-Bland Case Law
1. Frenchay Healthcare NHS Trust v S [1994] 2 All ER 403
2. Re D [1998] 1 FCR 598

3. Re H (adult: incompetent) [1998] 2 FLR 36

There is no doubt in the view of all the witnesses who have given evidence that
in Dr Wades terms the patient is wholly unaware of herself or of her environment
and that there is no possibility of any changeI am quite satisfied, having heard
the consultant trauma and orthopaedic surgeon, together with the consultant
neurologists, that this is a case of a vegetative state which, although it may not fall
precisely within the Royal College guidelines, is and can properly be described as
being permanent.

Role of the Court in Witholding/Withdrawal of treatment cases?

An NHS Trust v M [2005] EWHC 807

It seems to me that the court, as a publicly accountable body, is the proper

repository of this responsibility rather than doctors and rather than the family.
None of them should feel that they bear the weight of any responsibility arising
out of what happens after today.
Resolving Disputes
See paras 47 and 48 of GMC, Treatment and Care towards the end of life, (2010) on this.
Court of Protection Practice Direction 9E: APPLICATIONS RELATING TO SERIOUS
MEDICAL TREATMENT
This practice direction sets out the procedure to be followed where the application concerns
serious medical treatment in relation to P.
Matters which should be brought to the court: para 5 - Cases involving any of the
following decisions should be regarded as serious medical treatment for the purpose of the
Rules and this practice direction, and should be brought to the court: (a) decisions about the
proposed withholding or withdrawal of artificial nutrition and hydration from a person in a
permanent vegetative state or a minimally conscious state; .
For access to the full practice note, see : http://www.publicguardian.gov.uk/docs/09E_Serious_Medical_Treatment_PD.pdf
Withdrawal of ANH from a patient in a minimally conscious state:
W v M [2011] EWHC 2443 (COP)
The Court of Protection distinguished her case from Bland saying she had consciousness, was
sensate and clinically stable. Although she suffered pain and distress 25-30% of the time, she
experienced pleasure and was likely to live for another 10 years.
Q: Applying s.4 MCA was it in her best interests to withdraw ANH?

A: No the interest in preservation of life was to be given substantial weight.

M does experience pain and discomfort, and her disability severely restricts what she
can do. Having considered all the evidence, however, I find that she does have some
positive experiences and importantly that there is a reasonable prospect that those
experiences can be extended by a planned programme of increased stimulation.I
conclude that it is not in Ms best interests for artificial nutrition and hydration to be
withdrawn.

Aintree University Hospitals NHS Foundation Trust v David James and Others [2013]
EWCA Civ. 65
In my view, therefore, Peter Jackson J was correct in his approach. Given the
genesis of the concepts used in the Code of Practice, he was correct to consider
whether the proposed treatments would be futile in the sense of being ineffective
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or being of no benefit to the patient. Two of the treatments had been tried before
and had worked. He was also correct to say that recovery does not mean a return
to full health, but the resumption of a quality of life which Mr James would regard
as worthwhile. He clearly did consider that the treatments in question were very
burdensome. But he considered that those burdens had to be weighed against the
benefits of a continued existence. He was also correct to see the assessment of the
medical effects of the treatment as only part of the equation. Regard had to be had
to the patient's welfare in the widest sense, and great weight to be given to Mr
James' family life which was of the closest and most meaningful kind. (per Lady
Hale)
United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16
[t]he treatment does not have to be likely to cure or palliate the underlying
condition or return the patient to full or reasonable health, rather it should be
capable of allowing the resumption of a quality of life which the patient would
regard as worthwhile.
St Georges Healthcare NHS Trust v P & Q [2015] EWCOP 42
when considering the weight to be attached to the various factors a primary
consideration and lodestone is the principle of sanctity of life which whilst not
absolute must always weigh heavily in the balance.
But what if the patient is not in either a PVS or a minimally conscious state???
R on the application of Burke v General Medical Council [2005] EWCA Civ 1003; [2005]
3 WLR 1132
In Munby Js view court authorisation was always required for withdrawal of ANH where
there was doubt as to capacity, lack of unanimity amongst the medical team, where the
patient had requested ANH to continue or resisted withdrawal, or where those with legitimate
interest in the care of P asserted withdrawal was not in Ps best interests.
The Court of Appeal disagreed:
The Intensive Care Society informed us that each year approximately 50,000
patients are admitted to intensive care units and of these 30% die in the unit or
on the wards before hospital discharge. Most of these die because treatment is
withdrawn or limited, albeit in circumstances where the clinicians conclude
that such treatment would be likely merely to prolong the process of dying.
The ICS calculates that, if Munby J's criteria were applied, approximately 10
applications a day would have to be made to the courts. In the event, we do
not consider that the judge is right to postulate that there is a legal duty to
obtain court approval to the withdrawal of ANH in the circumstances that he
identifies (per Phillips MR).

2. Children:
As a group of patients, babies and very young children raise similar considerations to
those affecting adults without capacity
But also some additional dilemmas
And additional criminal liabilities
s.1 Children and Young Persons Act 1933 (wilful neglect)
R v Arthur (1981) 12 BMLR 1
note the controversial direction to the jury: I imagine that you will think long and hard
before concluding that eminent doctors have evolved standards that amount to committing a
crime. (per Farquharson J).
How is Dr Arthurs conduct distinguishable from the procedure approved by the HOL in
Bland?
Re B [1981] 1 WLR 1421
Should surgery be administered to baby with Down's Syndrome to remove an intestinal
blockage which would otherwise cause death in a few days?
Although decided in the same year as R v Arthur, the approach to the childs interests in these
decisions could not be more different:
at the end of the day it devolves on this court in this particular instance to
decide whether the life of this child is demonstrably going to be so awful that
in effect the child must be condemned to die.
However, There may be casesof severe proved damage where the future is so
uncertain and where the life of the child is so bound to be full of pain and
suffering that the court might be driven to a different conclusion. (per Templeman
LJ).
the duty of the court is to decide whether it is in the interests of the child that an
operation should take place.
Re J [1991] Fam 33
13 week premature baby weighing 2.5 lbs with severe mental and physical handicaps. Her
prognosis was that she would likely be be deaf, blind and dumb, with limited cognitive
development, paralysed from the neck down and unable to interact. She would, however, be
able to feel pain.
Was prolongation of life by intensive care in Js best interests?
the correct approach is for the court to judge the quality of life the child would
have to endure if given the treatment and decide whether in all the circumstances
such a life would be so afflicted as to be intolerable to that child. I say to that
child because the test should not be whether the life would be tolerable to the
decider. The test must be whether the child in question, if capable of exercising
sound judgment, would consider the life tolerable. (per Taylor LJ).

Re Wyatt (No 3) (A Child) [2005] EWHC 693

could aggressive and invasive treatment be withheld from Charlotte Wyatt?
medical opinion was unanimous that invasive medical treatment would not be in
Charlottes best interests, and Hedley Js conclusion was therefore unsurprising:
I do not believe that any further aggressive treatment, even if necessary to
prolong life, is in her best interests. I know that may mean that she may die earlier
than otherwise she might have done but in my judgment the moment of her death
will only be slightly advanced.
Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181
Note a movement away from the intolerability test:
We do not, however, dismiss "intolerability" as a factor altogether. As we have
already stated, we agree with Hedley J that whilst "intolerable to the child"
should not be seen either as a gloss on or a supplementary guide to best
interests, it is, as he said, a valuable guide in the search for best interests in this
kind of case.
See also para 106 of General Medical Council, Treatment and Care towards the end of life,
(2010) on treatment of neonates and infants at the end of life.
The Royal College of Paediatrics and Child Health, Withholding or Withdrawing Life
Sustaining Treatment in Children (2004)
There are five situations where it may be ethical and legal to consider withholding or
withdrawal of life sustaining medical treatment:
1. The Brain Dead Child. In the older child where criteria of brain-stem death are agreed
by two practitioners in the usual way it may still be technically feasible to provide basal
cardio-respiratory support by means of ventilation and intensive care. It is agreed within the
profession that treatment in such circumstances is futile and the withdrawal of current
medical treatment is appropriate.
2.The Permanent Vegetative State The child who develops a permanent vegetative state
following insults, such as trauma or hypoxia, is reliant on others for all care and does not
react or relate with the outside world. It may be appropriate to withdraw or withhold lifesustaining treatment.
3.The No Chance Situation. The child has such severe disease that life-sustaining
treatment simply delays death without significant alleviation of suffering. Treatment to
sustain life is inappropriate.

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4.The No purpose Situation. Although the patient may be able to survive with treatment,
the degree of physical or mental impairment will be so great that it is unreasonable to expect
them to bear it.
5. The Unbearable Situation. The child and/or family feel that in the face of progressive
and irreversible illness further treatment is more than can be borne. They wish to have a
particular treatment withdrawn or to refuse further treatment irrespective of the medical
opinion that it maybe of some benefit.
In situations that do not fit with these five categories, or where there is uncertainty about the
degree of future impairment or disagreement, the childs life should always be safeguarded in
the best way possible by all in the Health Care Team, until these issues are resolved.
Re A (Conjoined Twins) [2001] FLR 267
B. PATIENTS WITH CAPACITY
Does English law recognise a right to die?
As far as the law is concerned, P can take his or her own life, but what if his/her medical
condition means he/she would need the help of a doctor, a family member or a friend?
a) Positive acts by the medical profession
Note that the double effect principle applies equally to patients with capacity who request
action be taken to bring their life to an end:
R v Adams (1957) Crim L R 365
R v Cox [1992] 12 BMLR 38
b) Positive acts outside the double effect doctrine
A positive act which is intended to cause Ps death and which does in fact cause Ps death is
murder. What of acts falling short of the actus reus of murder - eg if D merely helps P in
achieving her stated wish to end her life?
Note: the offence of assisting or encouraging a suicide - s.2 Suicide Act 1961 (as amended by
the Coroners and Justice Act 2009)
AG v Able [1983] 3 WLR 845
Was publication of a booklet by the Voluntary Euthanasia Society an offence under s.2?
What about giving lectures on the most effective ways to attempt suicide?

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What about helping P to travel abroad to access assisted suicide in a jurisdiction where
it is lawful?
Note that under the revised s.2 offence no actual suicide or attempt is necessary:
s.2(1) Suicide Act: A person (D) commits an offence if
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide
of another person, and
(b) D's act was intended to encourage or assist suicide or an attempt at suicide.
BUT: see s.2(4): no proceedings shall be instituted for an offence under s.2 except by or with
the consent of the Director of Public Prosecutions.
Challenging the Prohibition on Assisted Suicide:

Challenging DPPs refusal to grant immunity from prosecution:

R (Pretty) v DPP (Secretary of State for the Home Department intervening) [2001] UKHL
61; [2002] 1 A.C. 800
Dianne Pretty sought judicial review of DPPs refusal to agree her husband would not be
prosecuted for assisted suicide. She sought to rely on the following to support an argument
that the risk of her husband being prosecuted for assisting a suicide was a violation of her
human rights:
Article 2 the right to life
Article 3 the right to freedom from inhuman and degrading treatment
Article 8 the right to privacy
Lord Steyn Essentially, it must be a matter for democratic debate and decision making by
legislatures
Pretty v UK [2002] 2 FLR 45; (2002) 35 EHRR 1
The ECtHR largely agreed with the HOL and concluded: many [terminally ill patients] will
be vulnerable and it is the vulnerability of the class which provides the rationale for the law
in question. The Court does not consider therefore that the blanket nature of the ban on
assisted suicide is disproportionate.
Was it inevitable that Mrs Prettys request would fail?

Challenging lack of guidance on when DPP would exercise discretion to prosecute:

R (Purdy) v Director of Public Prosecutions [2010]

Was the DPPs refusal to publish guidance on how he would exercise his discretion to
prosecute s.2 offences an unlawful breach of Purdys Article 8 rights?

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DPP Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide

See now - http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html - lists
sixteen public interest factors in favour of prosecution and six public interest factors
indicating there should be no prosecution (below):
A prosecution is less likely to be required if:
1. the victim had reached a voluntary, clear, settled and informed decision to
commit suicide;
2. the suspect was wholly motivated by compassion;
3. the actions of the suspect, although sufficient to come within the definition of
the offence, were of only minor encouragement or assistance;
4. the suspect had sought to dissuade the victim from taking the course of action
which resulted in his or her suicide;
5. the actions of the suspect may be characterised as reluctant encouragement or
assistance in the face of a determined wish on the part of the victim to commit
suicide;
6. the suspect reported the victim's suicide to the police and fully assisted them in
their enquiries into the circumstances of the suicide or the attempt and his or
her part in providing encouragement or assistance.
Note the following statement made in the judgment of Lord Hope in Purdy:
It must be emphasised at the outset that it is no part of our function to change the law in
order to decriminalise assisted suicide. If changes are to be made, as to which I express no
opinion, this must be a matter for Parliament.

Challenging DPPs subsequent guidance as being insufficiently clear for the purposes
of Article 8(2):

R (on the application of Nicklinson) v DPP [2013] EWCA Civ 961

Did the DPPs guidance go far enough so that violation of the right to a private life was now
in accordance with the law as required by Article 8(2)?
In our judgment, the Policy is in certain respects not sufficiently clear to satisfy the
requirements of Article 8(2) in relation to healthcare professionals (at [140]).
c) Omissions: withholding/withdrawing treatment and the patient with capacity
Note material on refusals of life saving treatment/intervention in the earlier topic of consent:
General point is that doctors must comply with a competent adults refusal of life-sustaining
medical treatment.
British Medical Association guidance to doctors explains that where a patient is competent,
her right to refuse life-sustaining medical treatment must take priority over the doctors duty
to preserve life.
Re T [1992] 4 All ER 649 (capacity is risk related)
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Lord Donaldson the patients right of choice exists whether the reasons for making that
choice are rational, irrational, unknown or even non-existent.
BUT
Re AK (Adult: Medical Treatment: Consent) [ 2001] 1 FLR 129
In the present case the expressions of AKs decision are recent and are made not on any
hypothetical basis but in the fullest possible knowledge on impending reality. I am satisfied
that they genuinely represent his considered wishes and should be treated as such Given
that his express wishes are clear, the conclusion follows from what I have said that once the
conditions which he has stipulated arise it will be unlawful to continue invasive ventilation.
(Hughes J)
B v An NHS Hospital Trust [2002] 2 All ER 449
Secretary of State v Robb [1995] 1 All ER 677
Acceding to competent patients refusal of life saving medical treatment did not constitute
assisting a suicide.
Recent Developments in the Law on Assisted Suicide
- Lord Falconers Assisted Dying Bill
The legal position in other jurisdictions
- Netherlands
- Oregon
- Belgium

Advance Decisions At The End Of Life

Note: under the MCA an advance decision is only effective if made by someone aged 18 or
over.
On advance decisions refusing life sustaining treatment, refer back to ss.24-26 of the Mental
Capacity Act 2005. An advance decision to refuse life sustaining treatment can only be
effective:
i) if it states clearly that it is to apply even if life is at risk: (s.25(5))
ii) if it observes certain formalities (s.25(6))
Advance decisions generally must also be valid and applicable
Validity
S.25 (2): An advance decision is not valid if P
(a) has withdrawn the decision at a time when he had capacity to do so,

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(b) has, under a lasting power of attorney created after the advance decision was
made, conferred authority on the donee (or, if more than one, any of them) to give or
refuse consent to the treatment to which the advance decision relates, or
(c) has done anything else clearly inconsistent with the advance decision remaining
his fixed decision.
On validity, see Re E [2012] EWHC 1639 (COP)
Where there is a genuine doubt or disagreement about the validity of an advance
decision, the Court of Protection can make a decisionI consider that for an
advance decision relating to life-sustaining treatment to be valid and applicable,
there should be clear evidence establishing on the balance of probability that the
maker had capacity at the relevant time.I find on the balance of probabilities
that E did not have capacity at the time she signed the advance decision in
October 2011. Against such an alerting background, a full, reasoned and
contemporaneous assessment evidencing mental capacity to make such a
momentous decision would in my view be necessary. No such assessment
occurred in E's case.
See also the relevant common law decision in:
HE v A Hospital NHS Trust [2003] 2 FLR 408 revocation by conduct.
Applicability
s.25(4) An advance decision is not applicable to the treatment in question if
(a) that treatment is not the treatment specified in the advance decision,
(b) any circumstances specified in the advance decision are absent, or
(c) there are reasonable grounds for believing that circumstances exist which P did not
anticipate at the time of the advance decision and which would have affected his
decision had he anticipated them.
W Healthcare NHS Trust v H [2005] 1 WLR 834
A decision on advance directives at common law but still relevant to the MCA provisions:
I am of the clear view that there was not an advance directive which was
sufficiently clear to amount to a direction that she preferred to be deprived
of food and drink for a period of time which would lead to her death in all
circumstances. There is no evidence that she was aware of the nature of this
choice, or the unpleasantness or otherwise of death by starvation, and it
would be departing from established principles of English law if one was to
hold that there was an advance directive which was established and relevant
in the circumstances in the present case.
Default position: patient preferences as part of the best interests test:

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W v M [2011] EWHC 2443 (COP) where P has expressed wishes which fall short of a
valid and applicable advance directive, the fall back position is s.4(6) of the MCA. On the
facts of this case, the Ps expressed views were too imprecise to make a difference to the
outcome:
I accept, therefore, that when her grandmother and father were in
declining health and moved to live in nursing homes, M said on more
than one occasion words to the effect that she would not wish to live like
that, that she would not wish to be dependent on others, and that she
"wanted to go quickly". I also accept the evidence that, when reports
about Tony Bland appeared on television, M expressed views to the
effect that it would be better to allow him to die. But, as conceded on
behalf of the Applicant, there is no evidence that M ever specifically
considered the question of withdrawal of ANH, or ever considered the
question whether she would wish such treatment to be withdrawn if in a
minimally conscious state. Furthermore, even if M did specifically
consider those questions, there is no way of knowing her current views,
having lived in that state for over eight years. Given the importance of
the sanctity of life, and the fatal consequences of withdrawing treatment,
and the absence of an advance decision that complied with the
requirements previously specified by the common law and now under
statute, it would be in my judgment be wrong to attach significant weight
to those statements made prior to her collapse.

What of the advance decision in Re AK [ 2001] 1 FLR 129??

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