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It may be helpful for readers to know how advance directives and withdrawal of treatment decisions operate in the UK. It is now categorically laid down in law that a competently delivered refusal of treatment—either current or advanced—must be respected, even if this leads to the death of the patient. This was confirmed in 2002 in the case of Ms B,1 where the hospital authorities were ordered to pay £100 in damages for assault for continuing to ventilate Ms B against her wishes. It should be stressed, however, that the jurisprudence to date has focused on refusals of treatment and has not endorsed the legality of requests that a patient’s life be ended through active intervention. The active/passive distinction is, of course, as controversial for the law as it is for ethical discourse, but the courts repeatedly make the point that active euthanasia remains illegal in the UK.
This having been said, the medicalisation of decisions to withhold or to withdraw treatment has held considerable sway, and for many, such a decision that results in the death of the patient is tantamount to (passive) euthanasia. In the context of incompetent patients, for example, the courts have confirmed the legality of this approach in a virtually unqualified way. They have done so in the context of withdrawal of artificial nutrition and hydration from patients in persistent vegetative state (PVS).2 The obligation is to treat incompetent patients in their own best interests, but this has been interpreted to mean that so long as there is a good faith medical assessment of the futility of continuing with the “treatment” then it will be legal to withdraw it. This has been subject only to the need to obtain a declaration from a court, which in practice has represented little more than a rubber-stamping of the medical diagnosis of PVS.
The British Medical Association generated controversy by suggesting that this legal authority might be extended to legitimate the withdrawal of the same “treatment” from patients with severe dementia or those who have suffered catastrophic stroke.3 The difference, of course, between these patients and patients in PVS is that the latter are insensate whereas the former are not. Notwithstanding, the General Medical Council (GMC), for its part, produced guidelines in 2002 entitled Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making, which similarly envisaged withdrawal or withholding of artificial nutrition and hydration from sensate patients.
Most recently, however, the English High Court has challenged the legality of the GMC guidelines in a ruling which champions the right of self-determination of patients.4 In holding that patients have a human right to choose how to pass their closing days and moments of their life and how to manage their death, the Court held that medical assessments of futility cannot be determinative when dealing with competent patients: “If the patient [is] competent (or, although incompetent, [has] made a valid and relevant advance directive) his decision as to where his best interests [lie] and as to what life-prolonging treatment he should or should not have [is] in principle determinative”. But this, it should be noted, was in the context of a patient suffering from a progressive degenerative disorder which would, ultimately, require artificial nutrition and hydration. The concern was not that a refusal would not be respected, but that the decision would be taken out of the patient’s control. The ruling confirms that that control remains firmly with the patient. It is, however, subject to one important caveat. This is the 2002 decision of the European Court of Human Rights in Pretty v UK where it was confirmed that the UK was not in breach of its international human rights obligations by not providing legal means by which patients could request assistance in dying.5 Although the Court acknowledges the importance of respecting patients’ wishes in treatment decisions and maintaining their dignity as far as possible, this did not extend to a right to assisted suicide, nor, a fortiori, euthanasia.
Thus, the position in the United Kingdom is that competent patients have an absolute right to refuse medical treatment even if death is the result, and a right to judicial review of withdrawal or withholding decisions with which they disagree, but there is no right to demand respect for requests for active euthanasia, expressed in advanced directives or otherwise.