This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Medical Law Notes

Advance Directives Notes

Updated Advance Directives Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


X Primary Care Trust v XB [2012] EWHC 1390 (Fam)

  • in one of the few decisions that uphold an advance decision, it’s notable that P drafted it in careful consultation with his doctor

  • Analysed by Heywood in his article below

NHS Cumbria CCG v Rushton [2018] EWCOP 41


  • The application before Hayden J was for the proposed withdrawal of CANH from an 85 year old former nurse, Jillian Rushton. She had sustained a traumatic head injury in December 2015, and then was in in prolonged period of disorder of consciousness, lasting 3 years by the time that the case came to be determined. A year before she sustained the head injury, she had created an ADRT that provided that “on collapse, I do not wish to be resuscitated by any means,” that “I am refusing all treatment. Even if my life is at risk as a result,” and that“in all circumstances of collapse that put my life at risk, this direction is to be applied.”


  • Judge allowed treatment to be withdrawn from Rushton, and for her to be moved to a hospice to die


  • Illustrates the need for a central database

R Heywood, (2015) ‘Revisiting advance decision making under the Mental Capacity Act 2005: a tale of mixed messages’ 23 Medical Law Review 81


  • I found this article very useful!

  • He makes an interesting argument that capacity seems to be the control device that judges rely on most frequently to override an advance decision.

    • This component is arguably where the bias in favour of life remains most apparent.

    • It is possible to argue here that the law does not quite reach an optimum balance

  • Elsewhere, however, a more even balance does seem to be struck because once the issue of capacity is decided in favour of the patient, the early indications are that judges will not be disposed to use the safeguards to override an advance decision unless there is substantial evidence in support of their application

  • He also analyses several relevant cases after the introduction of the MCA

    • Very useful


  • Whilst most of the existing literature relating to advance decisions has focused on philosophical questions, this article reflects on the significant legal developments that have occurred since the introduction of the Mental Capacity Act 2005. The article provides a critique of the controversial issues which have emerged within contemporary case law. The focus of the discussion centres on capacity, the interpretation of the safeguards, and the bias towards preservation of life

  1. Introduction

  • Despite being recently placed on a statutory footing by section 24 of the Mental Capacity Act 2005, medical advance decision making is not a new concept in English law.

    • It was recognised by Lord Goff in F v West Berkshire Health Authority that one of the limits on necessity, the legal justification for providing treatment without consent in emergency situations, was the existence of some evidence of a pre-existing wish of the patient, expressed at a time when she was competent, which indicated that she may wish to refuse medical treatment for a particular illness or injury

    • Proceeding to treat the patient despite this objection would amount to tortious battery and could potentially lead to criminal prosecution

  • However, ADs at common law were subject to two strong caveats, the choice of the P had to be clearly established and applicable in the circumstances

    • Munby J in HE v A Hospital NHS Trust: the burden of proof rested on those who seek to establish the existence and continuing validity and applicability of an advance decision and that, where life is at stake, the evidence must be scrutinised with especial care.

    • Michalowski: ‘the new legislation as well as the common law apply a bias against the validity or applicability of an advance refusal of life-saving treatment’.

  • While this is true of the common law and the MCA framework, the question is whether this attitude is evidence in the judicial application of the legislation

    • Thus recent case law since the MCA is especially important

  • Within the framework of the Mental Capacity Act 2005, there remain a number of contentious issues which have caused problems for judges when it comes to assessing the validity and applicability of advance decisions.

    • Questions concerning capacity, the interpretation of the safeguards which were designed to allow an advance decision to be legitimately overridden, and also the preservation of life, have all emerged as recurring themes in the case law and serve to demonstrate the unsettled nature of the law under the Mental Capacity Act 2005.

  • The article begins by framing the debate and then moves the discussion beyond the consideration of principally philosophical concerns and engages with a number of important practical legal issues.

    • The discussion then proceeds to explore the trajectory of the law following the legislative intervention.

    • Particular focus is placed on capacity, the interpretation of the safeguards and the preservation of life

  • The article concludes by assessing whether or not the continuing bias in favour of preservation of life is as prevalent now as it once was under the common law

  1. Background: Framing the Debate

  • Advance decisions are usually justified on the basis of autonomy.

    • Dworkin argues that respecting autonomy is important because it allows us to construct our own identity; it ‘encourages and protects people’s general capacity to lead their own lives out of a distinctive sense of their own character, a sense of what is important to and for them’

    • His view of autonomy is thus based on a ‘narrative’ or ‘biographical’ view of an individual human life: the person whom an individual develops into will depend on the autonomous choices he or she makes now.

    • If that individual then loses the capacity to make further autonomous decisions, as that period of incapacity is as much a part of their life as any other, then there is no reason why they cannot be responsible for moulding that chapter of their life,...

Buy the full version of these notes or essay plans and more in our Medical Law Notes.

More Medical Law Samples