The first issue is that of consent to medical treatment. In England and Wales it is already the law, and has been for a very long time, that a doctor may not treat a competent patient without the patient's consent. Following the case of Re v 'T' in the Court of Appeal, it appears clear that, provided the conditions specified in that case are satisfied, this principle extends to a refusal of consent expressed in advance, perhaps by way of a formal advance directive. On this basis, it is not necessary to change the law to make such advance directives enforceable: they already are. A doctor who complied with a valid refusal of consent would not only incur no legal liability, but would be guilty of assault if he or she did treat the patient contrary to their wishes.
The Terrence Higgins Trust, in co-operation with the Centre of Medical Law and Ethics at King's College, London, has recently launched a Living Will form designed for use by people with HIV and Aids, in which such advance directives can be made. The Winchester case has nothing to do with advance directives or refusal of consent generally.
The second issue is that of taking steps with the object of killing or accelerating death. This is what the Winchester case was about: the step taken in that case was the administration of a lethal injection. As the Winchester case has confirmed, giving a lethal injection is illegal in England and Wales, even at the request of a patient.
The third issue concerns a case such as that of Hillsborough victim Tony Bland, if (as we assume) he had not stated any views about medical treatment. Whether food and water may be withdrawn from a patient in a persistent negative state is unclear in law.
There are, of course, different views about what the law should be in such cases, but, just as in the Winchester case, they have nothing to do with consent to medical treatment, or with an advance directive refusing consent to medical treatment.
Solicitor, Advice Centre
Terrence Higgins Trust
Centre of Medical Law and Ethics
University of London
London, EC1Reuse content