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What does the right to die entail?
Is there a right to refuse treatment?
Competent patient refusing treatment o In Burke v GMC,
? Lord Phillips (affirming lone line of cases)
A competent patient is entitled to refuse treatment that is objectively within their best interests. o Re B (Adult: Refusal of Medical Treatment) : Ms B suffered a haemorrhage to her spinal column, which required invasive surgery. While she later recovered, a subsequent problem which rendered her tetraplegic and having to breathe on a ventilator. She wished to have it withdrawn, but her living will was not specific enough. She was able to communicate her desire to have treatment withdrawn.
? Butler Sloss P
While there might be difficulties in assessing mental capacity, it is most important that doctors should not confuse the question of mental capacity o with the nature of the decision made by the patient, however grave the consequences.
Since Mrs B has capacity, and has expressed her clear wish for treatment to stop o The medics continuing treatment are liable in tort to her for assault.
Advance Directives o MCA 2004 s.4: requires doctors to make a decision based on the best interests of patient in front of you as of now o This leads to some tension with s.26(1)
? If P has made an AD which is (a) valid, and (b) applicable to a treatment
The decision has the same effect as if he had made it and the capacity to make it o At the time when the question arises re: whether the treatment should be carried out and continued o Where there is a personality changing illness, does s.26 still trump s.4?
? E.g. person uses advance directives to say wants to die if get Alzeimers
Gets Alzeimers - but appears to be far happier as he is - laughing and joking
Then gets chest infection - oral antibiotics would very easily treat them, nothing invasive o BUT is the advance directive binding on them?
? Is there a need to see this as a standoff between s.26 and s.4?
May be that Burke dicta applies only to positive advance directives, and therefore doesn't apply to situation just described
May be able to resolve simply by saying that person is happy, then advance directives is not applicable - o b/c in this advance directive the person thought they would be unhappy and want to end their life, and this seems not to be the case now.
? But sometimes tension does arise
Foster: good grounds to say s.4 will trump s.26 o Real personality change which cannot be ignored in legal terms
o Must determine in the present (s.4) o And explanatory notes Code of Prac 5.38 What about other death rights?
The right to a "good death" o Pretty v UK
States must refrain from inflicting cruel and inhumane treatment o Suffering that flowed from a naturally occurring illness could be covered where it is exacerbated by treatment,
? whether flowing from conditions of detention, expulsion and other measures for which the authorities can be held responsible.
? Me: Implication of the judgement is that adequate healthcare must therefore be provided by states
Incompetent patients and best interests o The right not to have doctors try and save life no matter the cost:
? Airedale NHS Trust v Bland: P in PVS - could doctors withdraw ANS treatment?
Lord Goff: o A is still alive, but while sanctity of life is a fundamental principle, it is not absolute o There is no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances.
? Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist. No right to treatment being continued at patient's request (sort of)
R(Burke) v GMC  B's disease meant that at some point in the future he would require artificial nutrition and hydration. He was concerned the GMC guidance was inconsistent with law, and did not want ANH withdrawn if he became incompetent. He argued that withholding ANH would be contrary to Arts 2, 3 and 8, especially where he had made it clear he wished treatment to continue. o Lord Phillips MR
? While a competent patient can refuse treatment that is objectively in their best interests, as personal autonomy prevails.
That same right does not entitle the competent patient to insist on receiving a particular medical treatment o While a doctor can give options and describe the benefits and disadvantages, and P can make additional suggestions
? If D does not think it is clinically indicated has no legal obligation to provide it
? Where ANH is necessary to keep the patient alive, the duty of care will normally require the doctors to supply ANH
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