Power of Attorney in End of Life Decisions

Chapter 1: Introduction

Background

This dissertation is a critical discussion on legal and ethical issues that are involved in the use of Advance Directives and Power of Attorney in the End of Life Care. The concept of Advance Directives was developed in the 1960s as a response to the concerns of individuals about their care at the end of life situations where such individuals feared loss of decision making capacity. Advance Directives allow individuals to make decisions with regard to their treatment which are then applied if such patients may even lose their decision making capacity. The Mental Capacity Act 2015 allows the making of such Advanced Directives; but there are certain ethical issues relating to the autonomy of the individual, competency of the individual, the right of individual to make decisions concerning treatment in end of life care, and the principle of beneficence that affect the legal issues self-determination, competency and mental capacity of the patients, that need to be considered in how the Mental Capacity Act 2015 operates with respect to Advanced Directives. In particular, Section 25 of the Mental Capacity Act 2015 is assessed in this dissertation because it allows Advanced Directives to be invalidated under certain circumstances, which presents a situation of discrepancy between the autonomy of the individual and the way that autonomy is perceived to be vitiated under the law. The ethical issues that are involved in such a situation are related to the conflict between the autonomy of the individual and the principle of beneficence which may be used to override the wishes of the individual under certain situations.

Defining key issues and concepts

Beauchamp identifies the principles of respect for autonomy, beneficence, non-maleficence and justice some of the key ethical concerns in the intersection between the patient’s rights and the law. Advance Directives can present a moral dilemma in how they lead to juxta positioning of the rights of the patients with the ethics of the practice of medicine. For instance, conflict may at times be seen in the principle of respect for autonomy, which requires that the directions of the patient for the treatment be given effect to, and the principle of beneficence, which gives precedence to the benefit of the patient; this may happen when significant changes are made in medical science from the time when the advanced directive was made to the time when it comes to be applied. The conflict between the principle of respect for autonomy and beneficence becomes relevant because the doctor may wish to act for the benefit of the patient which may require the doctor to oppose the application of the advance directives. Autonomy of the patient is related to liberty, power, responsibility and control of the patient over their health care decisions with an emphasis on self-rule. This is also provided in the Assisted Decision-Making Capacity Act of 2015, which provides the legal parameters for the decision making capacity of individuals. The principle of beneficence relates to the doing of acts that will benefit the patient; medical professionals achieve beneficence in their relationship with patients when they further the legitimate interests of the patients and remove possible harms. Another concept that is involved in this dissertation and merits some explanation at the outset is that of paternalism, which is seen when doctors take on themselves the responsibility of making decisions for the patients even when the patients desire some other form of action. This paternalism problem may be even more prevalent at the end of life situations when patients are unable to make decisions, that is, they may lack the capacity to make such decisions. Autonomy would require that patients’ choices at the end of life are not constrained by the conflicting notions of the medical professionals as to what is right for the patient. However, this autonomy may be challenged by the personal identity problem, which is a challenge to the moral authority of Advance Directives. This is the problem of the destroying of the conditions necessary for personal identity when a person who has made an Advanced Directive now loses the capacity to made decisions and this may compromise the moral authority of the directive. For instance, the individual who made the Advance Directive would no longer be able to change their mind about the decision made. On the contrary, individuals who have mental capacity can change their minds and decide to take a different route to their treatment options at end of life. Thus, an important argument is made by Buchanan that “psychological continuity is (at least) a necessary condition for personal identity”. The argument is that the present self may not be the best judge of decisions that the future self would make when they have different beliefs or ideas to what they had previously when they made the Advanced Directives. More recently, this argument was reiterated by Maclean where he writes that advanced directives may take away the capacity to correct earlier decisions when the patient is no longer in a position to change their mind. When a person is incompetent to made decisions in the end of life care, it is possible that their Advanced Directives are questioned at a time when they are not mentally competent to take decisions, and the question of what would be in the welfare of the incompetent persons or the best interest of the patient.

Research questions

There are two key research questions raised in this dissertation; the first research question relates to the ethical issue involved in the research; and the second is related to the legal issue. The two key research questions are further divided into the sub research questions. This is detailed in this section.

Research question 1: whether advance directives can pose conflict between two or more ethical principles, and if such conflict is posed, then which ethical principle should prevail?

Structure of the dissertation

The second chapter is a discussion on the nature and application of Advance Directives in end of life care. The chapter also provides a discussion on how conflicts arise between the ethical principles of respect for autonomy and beneficence in such end of life care settings when the patient loses capacity to make decisions. The third chapter is a discussion on the legal issues that arise in the use of Advance Directives, which include questions relating to self-determination, competency, mental health and the related provisions of the Mental Capacity Act 2015. This chapter discusses how the best interest standard in the law respond to cases where the LPA decision relates to life-sustaining treatment and the advance directive has been invalidated and how it responds to cases that relate to emerging treatment options. The fourth chapter is a critical discussion on the conflict between principles of respect for autonomy and principle of beneficence and how the Mental Capacity Act 2015 responds to these conflicts. The question that drives the analysis in this chapter is how the MCA addresses the issues of identity and preferences about medical treatments where there may be a conflict between the past and present interests of the patient who has lost capacity to make decisions.

Chapter 2: Advanced Directives

Advanced Directives relate to decisions made by individuals for their future medical treatment or and end of life care and such directions can be made in the Living Will or an enduring power of attorney by a person who has the capacity to make such decisions. Such decisions can then guide future medical treatment or end of life care when the person is no longer having the capacity to make them. As such, Advanced Directives are seen as a way for respecting the autonomy of a person to make decisions. The concept of Advanced Directives is underpinned by the moral obligation for the principle of respect for autonomy. This is relevant to people who are no longer capable of making decisions relating to their medical treatments or end of life care so that their already documented choices can override their position of incapacity for decision making later in life when such directives become relevant. There are three types of Advanced Directives that are identified in the literature. A Living Will is of the nature where a list of preferences referred to medical treatments are mentioned by the patient as the preferences for medical treatment in certain potential medical situations or preferences that the maker of the will is expressly excluding from his list of preferred treatment options. A durable power of attorney can be made by the maker in which they name another person for making decisions on their behalf when they themselves are not able to do so; such person can be called healthcare proxy or a substitute decision maker. An informal statute of preferences can also be made as an Advanced Directive where the maker may provide a written or oral statement specifying the their preferences as a whole. From a legal perspective, the Advanced Directive is permitted in the Mental Capacity Act 2005. This allows the individual to make an advance directive or appoint another proxy to make decisions regarding the healthcare decisions. The relevant provisions of the Mental Capacity Act 2005 are Sections 24, 25, and 26. Section 24 provides the definition of Advanced Directive as a decision that can be made by a person above18 years of age when he has capacity to make such decision which is to be applicable at a later point in time for the purpose of specifying the medical treatments to be carried out or continued by a person providing health care for him. Such decisions are applicable to the time when that person lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued. It is also important to note that Section 24 (2) provides that the Advanced Directive does not have to be expressed in legalistic terms because even if it is expressed in layman's terms. Section 24 also provides that the advance decision can be withdrawn or changed at any time when they have the capacity to do so, and which may be a partial withdrawal and need not be in writing (Section 24(4)). The law does specify that Advanced Directives need to be in writing and need to be withdrawn in writing if it is related to life sustaining treatment as provided by Section 25(5), which provides that such decisions are applicable only if they are made in writing with the person making it specifying it that it is to apply to that treatment even if life is at risk. Furthermore, the Advanced Directive for life sustaining decisions should be signed by the person making it or by another person in their presence and by their direction and also acknowledged by a witness who also signs it (Section 25(6)). Other than this situation, the Advanced Directive need not be in writing and need not be altered in writing.

The Mental Capacity Act 2005 also provides for the conditions where the advance decisions may be held to be valid and applicable or otherwise in Section 25. Advance decision is not valid if withdrawn when the person making it has the capacity to do so, or where the decision was made under a lasting power of attorney created after the advance decision was made, and has conferred authority on the donee to give or refuse consent to treatment, or clearly inconsistent with the advance decision remaining his fixed decision. Advance Directives are also not applicable when the person making it has capacity to give or refuse consent to it. It is also not applicable where the treatment is not the treatment specified in the advance decision, or there are certain circumstances specified in the advance decision absent, or there are reasonable grounds for believing that circumstances exist which were not anticipated by the person making it at the time of the advance decision and where such anticipation may have affected his decision. The effect of Advanced Directives is provided in Section 26. Thus, if the maker of the Advanced Directive has made a valid decision which is applicable to a treatment, then such decision is effective. Furthermore, the same Section 26 also provides that no one would incur liability for the consequences of withholding or withdrawing a treatment as per the Advanced Directives. Power is given to the court to make a declaration as to whether an advance decision exists, is valid and is applicable to a treatment (Section 26(4)). Importantly, despite the existence of advance decisions, life-sustaining treatment, or other treatment that is necessary to prevent a serious deterioration in condition can be allowed under a decision by the court (Section 26(5)). Some of these points are central to this dissertation as well because there are legal provisions that also allow courts to provide exceptions even to the advance decisions of the patient. This will form part of the critical discussion in the other sections of this dissertation. At this point, it may be noted that there are certain criteria that are mentioned in the Mental Capacity Act 2005 and if these criteria are met by the advance decisions of the patient, then the advance decisions are legally effective; however, it is also argued that even if an advance decision does not meet these criteria but does clearly indicate the wishes of the patients, then even if it is not be legally binding it should be considered in determining the best interests of the patient. This is a different argument to the one that the advance directive should be effective even if not compliant with the legal criteria. Rather, the argument is that when considering the best interests of the patients, there should be reference to the wishes that are clearly made out in the advance decisions of the patients even where not legal binding. This would however put the onus on the substitute decision makers or the doctors or the courts, as the case may be, to consider the wishes of the patients. It would also mean that there is discretion on the decision maker that they may consider or not consider the wishes of the patient. This is an important point which needs to be considered for critical appreciation of ethical and legal contexts of the Advanced Directives. There are a number of justifications given for developing and accepting the concept of Advanced Directives. These justifications are discussed first in some detail to provide a context and background to the research problem and questions. One justification is that this concept leads to the economical and ethical use of medical resources and reduces the burden of substitute decision-makers. When a patient makes Advanced Directives, they may also appoint a substitute decision-maker to make choices on their behalf and according to the directions already made by the patient or the framework provided by the latter based on their beliefs and wishes. The role of the surrogate decision maker is an important aspect in the discussion on the utility of the advanced directives because the surrogate decision maker takes on the role of the patient. This has been suggested as an important characteristic of the Advanced Directives in that it is argued that Advanced Directives are not just beneficial for the patient who may not have mental capacity to make decisions at the end of life situation, but also for the society at large. Advanced Directives are also seen as beneficial to the surrogate decision maker because the existence of the advanced directives makes it less burdensome for the surrogate decision maker to make decisions. For the society, the Advanced Directives are beneficial because they are declarative of the preferences of the patient and this also promotes shared decision making for the benefit of the patient. Ultimately, it is argued that the Advanced Directives enhance the quality of healthcare decisions and also leads to optimal utilisation of healthcare resources because there are patients who have specified in the advanced directives that they do not wish to be treated with aggressive treatment options.

Indeed, the economic benefits of Advanced Directives are not just related to the society and the optimal use of resources with some patients expressly rejecting aggressive and expensive treatment options, these benefits are also extended to the family of the patients themselves because the patient may deny the use of expensive medical resources. Thus, the financial burden of patients' families can be reduced with the use of the Advanced Directives. This is particularly true for the patients who are suffering from some chronic and terminal illnesses because these illnesses can have more serious financial consequences for patients and their families. It is also noteworthy that seriously ill patients may articulate as one of their end-of-life priorities to have their health care costs reduced so as to not put unnecessary financial burden on loved ones. Because of the increase of the financial burden on family members at the end of life care, this too raises important issues of ethics and justice because there may be conflicts of interest between surrogate decision makers and patients or physicians when such economic inputs are added into the decision making process. In this context, Advanced Directives can play a role in safeguarding the interests of the patients who may have articulated their own values, goals, and preferences in the early course of their disease. This is one of the benefits of the Advanced Directives in the context of the economic benefits of the Advanced Directives. In the post Covid-19 world, the concept of Advanced Directives may become more significant in the context of economic benefits of the concept in light of medical and other resources. The reason why this gains significance in the Covid-19 pandemic and beyond is because of the older adults in end of life care comprise the majority of the population in long-term care facilities, and such adults usually also have multiple chronic conditions and are disproportionately impacted by COVID-19. One of the concerns in this context is that older populations may get unjustly excluded from schemes or may be treated unjustly in pandemic emergencies where stereotypes related to age may disproportionately affect prioritisation decisions. In other words, there is a concern that the older and particularly end of life care patients in care homes and even hospitals, may not receive prioritisation during the pandemic emergency. As pandemic emergencies necessitate the making of the resource allocation decisions, decisions made solely on the basis of advanced age to exclude the older populations for resource allocation may violate the ethical principle of justice. When ethical concerns around Advanced Directives are discussed, the economic context is one of the important aspects. Another justification for Advanced Directives is that it addresses paternalism in medicine by providing overriding powers to the patient to make decisions for themselves when they have the capacity to do so. It is noted in literature that even if paternalism is applied as benevolent decision-making in the best interests of the patient, it may still be conflicting with the autonomy of the patient, which is a proposition which is to be challenged because the patient ought to be asked as to what their own preferences are with regard to their proposed treatment. In ethical discussion on Advanced Directives, one of the aspects of the discourse relates to the healthy paternalism of doctors and whether the doctors should have the decision making for the benefit of the patient and some scholars have argued that doctors do retain the decision making for the patient.

However, the use of Advanced Directives are also said to be an antidote to paternalism. It is argued that the use of Advanced Directives can provide a balance in favour of patient’s autonomy as against hard paternalism of the doctors and medical providers. Therefore, it is said that there is a classical conflict in professional responsibility to balance the respect for patient’s self-determination with paternalism within a paternalistic model. Indeed, there is still some support for the paternalist model as demonstrated by a recent qualitative study which provided some evidence that even patients in the end of life care may want their doctor to make treatment decisions on their behalf based on the trust in the doctor–patient relationship; knowledge and expertise, professionalism, role and responsibility; and the vulnerability, dependence and reliance, compromised autonomy of the patient. The study suggested that the paternalistic model within medical care can be an expectation of some older patients. The nature of the Advanced Directive is such that it is in itself a legal document based on the principle of autonomy, which expresses the desire of the patient with respect to decisions that they are taking in advance for medical conditions that arise in future and which may be dealt with in ways that are outlined by the patient. It is also relevant to note that research has suggested that in paternalistic systems of medical care, Advanced Directives do not work; an example of Albania is taken where the paternalistic position about medical care exists, and the application of Advanced Directives is seen to be extremely atypical so much so that medical teams are not allowed to withdrawal support even under explicit request of the patient. Yet another justification of Advanced Directives is that it can lead to development of autonomy in the patient by empowering the patient to make decisions for their treatment which can be used to guide their treatment at a time in their lives when they do not have capacity. Arguments on autonomy can be linked to the general argument on individual autonomy made by Mill and more recently by Dworkin. Autonomy is described as the “rejection of the image of patients as passive care recipients and the suspicion against manipulative and/or paternalistic influence anyone may have on patients’ decision-making process.” A question has been raised as to whether Advanced Directive is an effective legal resource for advance planning and documenting the wishes of the patient when they have capacity to do so for documenting decisions and providing consent at a future time. There are some benefits of the Advanced Directives in this respect which include the respect for autonomy of the patients. There are also questions raised as to whether the respect for the autonomy of those patients who do not have mental capacity is morally required. Another issue that is raised with respect to autonomy is the concept of relational autonomy. The relational autonomy relates to the role played by the family members of the patients and there is a concern that there are possibilities that family members may have divergent values and priorities from those of the patients, and that their involvement in the management or treatment of the patient could be opposed to the autonomy of patients and best interests. The concept of relational autonomy is emphasising on the fact that patients may at times defer to the values and wishes of their families in articulating their advance directives; it is argued that when patients are also capable of giving more weight to the preferences of their relatives and loved ones in place of their own clinical interests, then this does not truly reflect personal autonomy of the patients and can instead of seen as instances of compromised autonomy of patients. In this context, the notion of autonomy involved in the Advanced Directives becomes suspect and there is an ethical concern that may be raised as to whether the Advanced Directive is truly a devise of patient autonomy or whether it is a devise that reflects on the wishes or desires of the patient’s family members some of which may even be driven by economic concerns. In this context, a question on whether the Advanced Directive may be given effect to or ought to be given effect to may be raised. With regard to this the following statement becomes relevant in the context of this dissertation, and will be used later in the dissertation to consider how convergence of legal and ethical issue takes place:

“While respect for self-determination is undeniably important, a look at patients’ preferences and the context within which they make clinical decisions would reveal that autonomy is a far more complicated matter than is apparent within the standard individualist conception. Even in the contemporary clinical setting that considers autonomy as a capstone value, vulnerability continues to be the reality of many patients’ experience and influences their decision-making.”

The question of relational identity and how far this plays a role in the decision making process of the individual at the time of making the Advanced Directives therefore becomes important. The notion of relational identity is related to the self being constituted to an important degree by the relations that one has and the responsibilities one has to the relations do that the relations and their welfare may also become significant to the person making advance decisions even more so than their own interests. However, when a person is making decisions even with consideration to the interests of their loved ones, the argument can be raised that this should still be effective in nature because a person’s autonomous decision making process can include consideration of various factors, which also includes concern for the relations and loved ones. In other words, a person can legally and morally make effective Advanced Directives even when these are also related to the concern for the relations and loved ones. The above can also be aligned with the argument made by Agich that there is no consistent definition of autonomy and that the term autonomy “involves a diffuse set of meanings that are culturally as well as philosophically determined” and therefore, there is no consistent meaning of the term autonomy in ethical theory and political theory. An important factor that is noted in literature is that there is a difference in how autonomy is constituted in cultural contexts where individualist societies may culturally constitute autonomy in purely individualist terms, whereas collectivist societies view autonomy in more relational terms where the self is not just constructed in individualist terms but also in familial or collectivist terms. This would also have implications for the way in which autonomy is constructed for the purpose of Advanced Directive. This is also reflected on by Ho who writes about how the individualist notions of autonomy is different to collectivist notions of autonomy and how this impacts Advanced Directives. Ho notes that while on the surface, patients may appear to now have more opportunities to exercise their self-determination “but the discussions of patient autonomy in the bioethics literature, which focus on individual patients making particular decisions, neglect the social structure within which health-care decisions are made.” Another question as to whether Advanced Directives really support autonomy is also raised by George Agich, who argues that ‘actual autonomy’ relates to development or encouragement of conditions for fostering capacity, providing diverse available care plans so that patients can choose from these plans. The argument is that if the patient is not aware of all the medical options available to them at the time of making the Advanced Directives, then the Advanced Directive does not reflect on actual autonomy of the patient. The issue is that Advanced Directives are aimed at providing directions for the future medical treatment of the maker; such Advanced Directives may be many years old when they actually become relevant, and the patient may not have accounted for the new technologies or medical options that may be innovated in the future when they made these Advanced Directives. Opposition to Advanced Directives is also based on the concept of personal identity and the absence of psychological continuity between the time when the Advanced Directives were made and when they come to be applied later in point when the same person does not have mental capacity to make decisions. David Parfit’s theory of personal identity can be referred to here. Parfit argues that there needs to be a psychological continuity between A (the person making the Advanced Directive) and B (the future self of the person) for them to be considered the same person. Buford also notes that when there is deep psychological change between the prior self and future self, the persons can be said to be different to each other. Taking this argument further, it can be posited that the person who makes an Advanced Directive at one point in their life when the person has competency to make the decisions, is not the same person later in their life when they do not have the same competency or any competency. It has been argued that a competent person in early dementia has significant difference in values and beliefs to the same person with severe dementia stage. Seen from this argument then, the ethical argument is that application of Advance Directives is akin to applying decisions of one person to a different person. This argument is therefore based on the premise that it is illegitimate to apply Advanced Directives to persons with dementia. However, the problem with this argument is that it would go on to make the entire concept of Advanced Directives inapplicable.

Another argument against Advanced Directives is that while a person one can have some idea of what beliefs and desires they may have with their future self, this cannot possibly take into consideration future possibilities such as changes in technologies or even attitudes. In the case of dementia, there is evidence that this is an experience that involves an unpredictable alteration of attitudes including on issues related to death. It can be argued that the Advanced Directives can be ignorant of the dementia experience, which may make the Advanced Directives an inappropriate option for people with dementia. In this context, the argument against the use of Advanced Directives (from an ethical standpoint), is that instead of allowing the use of the directives, there is more legitimacy of letting the health care workers to take care of the interests of the dementia patient in end of life care. The argument is that the Advanced Directives’ moral authority cannot be used to negate the responsibility of the health provider to protect the basic rights and interests of the incompetent or the unconscious patients. On the other hand, an important advocate for the use of advance directives even in dementia patients is Ronald Dworkin. He argued that Advance Directives even when made by an incompetent person, must be respected because even if it is argued that such person has changed their preferences, these changes in preference cannot be said to be genuine because such person does not have the capacity to fully appreciate their lifelong values. Dworkin explains the idea of individual autonomy (based on Mill’s thesis) as follows:

“recognising an individual right of autonomy makes self-creation possible. It allows each of us to be responsible for shaping our lives according to our own coherent or incoherent – but, in any case, distinctive – personality.”

Dworkin argues that there is part of the responsibility of making choices is the need to govern the course of one’s life, and this may also include possible future incompetence so that one can make choices as per “recognised and coherent scheme of value” which a person has when they have capacity to make decisions. Dworkin speaks of precedent autonomy to justify the use of Advanced Directives: “a competent person’s right to autonomy requires that his past decisions, about how he is to be treated if he becomes demented, be respected even if they do not represent, and even if they contradict, the desires he has when we respect them, provided he did not change his mind while he was still in charge of his own life.” Precedent autonomy allows us to respect the capacity of the maker of the Advanced Directive when such person no longer has the capacity to make the decisions so that instead of considering the person to be different from the one who made the Advanced Directive, the values created in the directive are considered to be reflection of the same person. By respecting a person’s autonomous choices in healthcare, the right to beneficence treatment is respected. Furthermore, Dworkin also argued that a person has critical interests and experiential interests. Experiential interests do not make our lives better or worse but critical interest can be critical to life. Based on this argument, there is a support for a person’s capacity to make Advanced Directive even for a future period when that person may have dementia.

Chapter 3: Legal issues arising in Advanced Directives

The legal issues involved in the Advanced Directives involve questions of self-determination, competency, and mental health. While self-determination is directly involved in making Advanced Directives, end of life care may raise complex questions of whether the directives are still binding if newer medical advancements mean that the patient’s earlier directives need to be overlooked in light of principle of beneficence. One of the key questions in this context is whether the Mental Capacity Act 2005 is able to adequately respond to the key ethical issues involved in Advanced Directives, namely, the conflict between the principle of respect for autonomy and principle of beneficence. The related questions raised are how does the best interest standard in Mental Capacity Act 2005 applies to cases where the Advanced Directives relates to life-sustaining treatment and the advance directive has been invalidated and how does the best interest standard in Mental Capacity Act 2005 responds to cases that relate to emerging options in treatments. Another question is how does the Mental Capacity Act 2005 addresses the issues of identity and preferences about medical treatments where there may be a conflict between the past and present interests of the patient who has lost capacity to make decisions. This chapter is a discussion on the legal issues that arise in the use of Advance Directives, which include questions relating to self-determination, competency, mental health and the related provisions of the Mental Capacity Act 2015. This chapter discusses how the best interest standard in the law respond to cases where the LPA decision relates to life-sustaining treatment and the advance directive has been invalidated and how it responds to cases that relate to emerging treatment options. The legal authorities on Advance Directives include legislation and case law which are to be discussed here. The Mental Capacity Act is the principal legislation which is related to the use of Advance Directives. However, there is limited force given to Advance Directives in England. In England, there is a possibility that law has not sufficiently or adequately responded to the issue of Advance Directives as pointed out by Johnston and Liddle. Nevertheless, the legislative responses to the Advanced Directives recognition are said to have been made to the Airedale case, as well as the recommendations made by the Law Commission for the enactment of laws on Advance Directives. First, it would be useful to understand the legal evolution of Advanced Directives in the UK. This goes back to the case of Airedale NHS Trust v Bland, in which case, request was made om behalf of Tony Bland, a teenager in a permanent vegetative state after sustaining a brain injury and left without cognitive function, by his doctors, consultants, medical experts, and family who wished to remove the feeding tube allowing Bland to die peacefully. The House of Lords agreed with this contention and also laid down the test of best interests of the patient whose life was not to be prolonged if this was not in the best interest of the patient. The House of Lords also held that removal of the feeding tube would not involve a criminal offence on the part of the hospital and NHS trust. Although the Airedale case did not pertain to Advanced Directives in particular, and related to euthanasia; however, the case does lead to the question of need for Advanced Directives so that doctors can follow the expressed wishes regarding such matters, without having to go to the court. The statutory framework for Advanced Directives was provided in 2005 with the Mental Capacity Act.

In the Airedale case, the court held that the doctors have the duty to act in the best interests of their patients and that in some circumstances it can be lawful to withhold life-extending treatment. Although the case did not relate specifically to Advanced Directives, the need for the same becomes more apparent through the example of this case because the existence of Advanced Directives can allow doctors to take steps in accordance with the expressed wishes of the patient. The Law Commission too had recommended that there should be acceptance of Advanced Directives. The Law Commission stated at the time that advanced refusal of treatment should also be given equal weight as a refusal from a currently competent person. The civil courts had also taken similar position when it comes to Advanced Directives. First, to discuss the legal definition of Advanced Directives, this is provided in Mental Capacity Act 2005 and was discussed in the previous chapter of this dissertation. To briefly recapitulate the definition, Section 24 provides that advance decisions can be made by a person when he has capacity to make such decision which is to be applicable at a later point in time for the purpose of specifying the medical treatments to be carried out or continued by a person providing health care for him. Furthermore, Advanced Directives do not have to be expressed in legalistic terms and can be expressed in layman's terms. The requirement for the Advanced Directives to be in writing and signed and witnessed only arises when the Advanced Directives relates to life sustaining treatment. Therefore, the first point to be noted here is that the Advanced Directives are allowed under the Mental Capacity Act 2005 and that barring Advanced Directives that are related to life sustaining treatment, there are fewer formalistic requirements. The second point to note is that the law provides some criteria that has to be met for the Advanced Directives to be legally effective. This criteria is also provided in the Mental Capacity Act 2005. This has been discussed in the previous chapter as well, but can be briefly encapsulated here. The criteria is that the person must be above 18 years of age, and must have capacity to make the Advanced Directive. Furthermore, the Advanced Directive must be related to the treatment. On the other hand, if the Advanced Directive has been withdrawn when the person making it has the capacity to do so, or where the decision was made under a lasting power of attorney created after the advance decision was made, and has conferred authority on the donee to give or refuse consent to treatment, or clearly inconsistent with the advance decision remaining his fixed decision, then the Advanced Directive is not valid. This is provided in Section 25 of the Mental Capacity Act. The legal effect of Advanced Directives is provided in Section 26. Thus, if the maker of the Advanced Directive has made a valid decision which is applicable to a treatment, then such decision is effective. There is no incurring of liability for the consequences of withholding or withdrawing a treatment as per the Advanced Directives. Courts also have a role to play in the making of the Advanced Directives effective or declaring them to be ineffective. Power is given to the court to make a declaration as to whether an advance decision exists, whether it is valid and whether it is applicable to a given treatment (Section 26(4)). Importantly, despite the existence of advance decisions, life-sustaining treatment, or other treatment that is necessary to prevent a serious deterioration in condition can be allowed under a decision by the court (Section 26(5)). Some of these points are central to this dissertation as well because there are legal provisions that also allow courts to provide exceptions even to the advance decisions of the patient.

There are other aspects of the legalities of the Advanced Directives. The concept of consent is an important aspect here and becomes relevant to the End of life decisions for adults based on Advanced Directives. As per the law, the consent has to be valid and the starting point of this is that the patient should have mental capacity to give consent. Capacity here is related to age of majority as well as mental capacity. In case there is lack of consent then its impact is on the validity of the Advanced Directives. The concept of consent is integral not only to the ethical positions but also the law related to the relationship between the patient and the health care providers. The issue of informed consent by the patient is central to the legitimacy of the medical procedures. The issue of informed consent can therefore, be considered to be legal as well as ethical. In the legal context, the doctor needs informed consent from the patient before performing medical procedures or interventions. While the issue of consent is central to the legitimacy of the medical procedures, it is structured in a different way for the Advanced Directives because in this context, consent is given to future procedures in the present time. Advanced Directives are made at a time when a person has the mental capacity to make such decisions, but the same person may not have the capacity to make decisions or give informed consent to the doctors. With regard to Advanced Directives, these are also made keeping in mind that there may be time when the same person may become patient of neurological diseases that may alter the patient’s capacity or competence. In this context, it becomes necessary to understand the nature of capacity and consent in Advanced Directives. The idea of consent is also linked to the concept of personal choice. This is because consent is based on the personal beliefs, attitudes, and desires of the individual. An important point is made by Atkinson who argues that while end of life care is once in a lifetime experience, mental illnesses may be recurrent in nature, and therefore, it is possible that even those individuals who may have recurrent experiences of mental illnesses may make decisions for future care based on these experiences. This may mean that even those individuals who have had previous experiences with mental illnesses or psychiatric episodes, may have particular interest in making directives for the future. Coming back to competency or capacity, there are four components that have to be involved to establish deemed competency to make decisions relating to health care. Thus, competency has to include the following concepts: first, the person making a decision for a specific medical procedure must understand the information related to the health condition as well as the treatment options available for it; second, must understand the implications of the condition on life with treatment options that may be elected; third, must be able to manipulate the information; and must be able to express a wish consistently with regard to the treatment. Competence is primarily a legal concept, and is used interchangeably with capacity. Although a legal concept, it is clinicians who may be called upon to assess the competence of a patient with regard to the Advanced Directives. Due to this, there may be certain problems associated with the Advanced Directives, that are accentuated in cases of dementia but also not unique to patients with dementia. One of the problems is that Advanced Directives are not always necessarily specific for clinicians to be certain about the intention of the author or for certainty in the appropriateness of applying the document to a particular situation. Another problem may be that the Advanced Directives are not always reviewed by the author so that it can be ascertained if the author has been able to change the Advanced Directives to reflect the change in mind of the author. At the very least, questions may be raised about the relevance of the Advanced Directives that have never been reviewed by the author after making them, and considerable time has lapsed since they were made. Nevertheless, the Mental Capacity Act 2005 does require that the final decision of the doctor, after considering the wishes and feelings, beliefs and values of the patient, is entirely to be based on best interests of the patient. The best interests of the patient is one of the important aspects of the legalities involved in the ascertainment of the Advanced Directives. This has also been noted by Lady Hale in Aintree University Hospital NHS Foundation Trust v David James and Ors:

“[I]n considering the best interests of this particular patient at this particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological…they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be.”

The concept of best interests of the patient is also juxta positioned with the idea of autonomy of the patient in the Mental Capacity Act 2005, as Section 1(4) provides that even where the doctor may be of the opinion that the patient may have made an unwise decision in the Advanced Directive this is not to be taken to mean that the patient was unable to decide or lacked the capacity or competency to decide on the decisions taken in the Advanced Directive. At the same time, the law also requires that the consideration of best interests of the patient can be taken by the substitute decision maker under Section 1(5) of the Mental Capacity Act 2005. The case law of the British courts on the patient’s autonomy can be discussed here to understand the way in which court approaches the issue of decision making of the patient. In Sidaway v Board of Governors of the Bethlem Royal Hospital, which is the first English decision on the right of the patient to reject medical advice, and the issue of informed consent, the court decided that the doctor does not have the duty to inform patient of remote side effects for the informed consent of the patient. In Re C (refusal of treatment) [Re C], where the issue of informed consent came to fore again, the patient’s right to refuse life saving amputation treatment based on the patient’s beliefs was upheld by the court on the basis that the patient is able to comprehend the information given to him, understood how it applied to him, and could consider the risks and benefits of the medical intervention, therefore, the patient had the capacity to give informed consent. This decision illustrates the judicial approach to the concept of patient autonomy and the notion that if the patient is in the position to understand the information given to him and appreciate the risks of the medical treatment or the lack of the same, then the patient’s wishes regarding their treatment ought to be respected by the doctor even if the doctor may believe that the patient is wrong in the decision making. This same principle can also be extended to the making of the Advanced Directive by the patient because the patient can appreciate the nature of medical problem, the treatment involved and the risks involved in the taking of the treatment or refusing medical treatment. In this context then, the idea of Advanced Directives not reviewed by the patient poses an interesting question because it may be considered that the patient may have changed their mind had they reviewed the Advanced Directive. Just to get a different perspective on this point, the French law on Advanced Directives may be briefly considered at this point. In France as well, statutory responses to Advanced Directives were first made in 2005. In France, the Advance Care Directive should be no more than three years old in order to be effective and the clinician also has the power refuse to comply with the directive. The French law also allows doctor the explicit right to withhold or withdraw treatment if the doctor deems that life is only extended artificially. The French Information Report 2004 also clarifies that the preservation of life takes precedence over freedom of choice if there is any doubt with regard to the choices made by the patient. The contrast between French and the UK with regard to how Advanced Directives are treated can be seen with regard to the bar in France on Advanced Directives not being more than 3 years old while there is no such limitation on the Advanced Directives’ age in the UK. Another contrast can be seen with regard to the extent to which doctors are empowered in France to refuse complying with the Advanced Directives while in the UK even if the best interests decision making being given to the doctors, a direction also being given (Section 1(4)) just because the decision of the patient seeming to be wrong, this does not mean that the patient does not have capacity to make the decision. It may be noted here that the most important difference is that while in France, presumption of doctors’ superior knowledge as compared to the patient, gives rise to preference for the principle of beneficence. It may be noted that in France, the doctors have no formal requirement for physicians to consult representatives of the patient. It has been noted that the adoption of the law on Advanced Directives in France was for the reason to “ease doctors’ feelings of guilt” when discontinuing a treatment. The above brief discussion on the contrasts between French and UK law on Advanced directives is useful in understanding the purpose of Advanced Directives in the UK, which is to respect the autonomy of the patient. In the UK, there is much emphasis on the autonomy of the patient. The doctor also has to take the decisions based on the best interests of the patient and in doing so has to consider the wishes and feelings, beliefs and values of the patient, for determining the best interests of the patient as per the Mental Capacity Act 2005 itself. Another important legal issue in the concept of Advanced Directives is that of self-determination. American judge and jurist, Benjamin N. Cardozo had noted the individual’s right to determine what can be done with his own body in Schloendorfcase. The observation of Justice Cardozo is:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.”

In the UK, similar observations were made in Re T (Adult: Refusal of Treatment). In Re T, the Court of Appeal held that, though every adult has the right and capacity to refuse medical treatment, this presumption of capacity can be overridden upon a determination that factors such as confusion or shock affected the decision of the patient. The point again comes to whether the patient had the capacity to make the decision that they did and in this context, the decision may come to the doctor to decide whether when a patient refuses treatment, doctors have to consider whether the patient's capacity was reduced due to some factors. As per the decision of Re T, the doctor may approach the courts for assistance. At the same time, the Mental Capacity Act 2005 allows presumption of capacity for the person who made the Advanced Directives. However, there have been cases where determinations made by patients were subjected to post facto capacity test as in the case A Local Authority v E [, in which the patient was found to not have capacity. Another issue about Advanced Directives is that in case of what is perceived as ambiguity in the language of the decision, there may be a reliance on what the family or close people say for the purpose of interpretation of the advance directive; this has implications for the autonomy of the patient where the ambiguity may be used to imply something that they did not wish for in their treatment. In that case, there can be a change in the intent of the Advanced Directives. Therefore, there is a possibility that law has not sufficiently or adequately responded to the issue of advance directives because there are situations in which the advance directives are not given effect to as pointed out by Johnston and Liddle. Coming back to the issue of consent, it has to be valid, that is informed and given voluntarily by a person with capacity. Patient should have mental capacity to give consent. There are some important questions about consent that are raised in the legal and ethical context. For instance: Under what conditions can consent be legally tested?; How is the patient’s mental capacity at the time they made the advance directive to make decisions about their care to be assessed at a later point?; What is the role of MCA in this context? There are some inconsistencies in how courts have approached the issue of consent in the Advanced Directives. One may start from the point that for a patient to give consent, there should be capacity to do so as well as voluntariness and informed decision making . The Mental Capacity Act 2005 does presume capacity in general (Section 1), but there are cases where ex post facto determination of capacity at the time of making the advance directive is done by the courts with the effect that patient is not found to have capacity at a later stage after having made the advance directive. This was the case in A Local Authority v E. This leaves room for Advanced Directives to be nullified at a later date on the basis of post facto determination of lack of capacity and may have implications for the ethical principle of autonomy of the patient. A case that illustrates this is the X Primary Care Trust v XB and Anor, where the carer questioned the Advanced Directives at a later point because she believed that the patient lacked consent to make it. Although the court found the patient had capacity, the facts of the case illustrate the different kinds of situations in which a patient’s capacity may come into question and potentially invalidate the Advanced Directives.

Chapter 4: Ethical issues that arise in the Assisted Decision making: The conflict between principles of respect for autonomy and principle of beneficence

This chapter is a critical discussion on the conflict between principles of respect for autonomy and principle of beneficence and how the Mental Capacity Act 2015 responds to these conflicts. The question that drives the analysis in this chapter is how the MCA addresses the issues of identity and preferences about medical treatments where there may be a conflict between the past and present interests of the patient who has lost capacity to make decisions. One of the key ethical issue related to this is whether Advanced Directives can pose conflict between two or more ethical principles, and if such conflict is posed, then which ethical principle should prevail. Conflicts can arise between ethical principles of respect for autonomy and beneficence in the context of Advanced Directives. The question is whether in the event of a conflict between the need to respect the patient’s autonomy expressed through an Advanced Directive and the benefit of the patient, a role is played by paternalism. Another related question is whether the personal identity problem compromise the Advanced Directives and whether it makes a case for choosing beneficence principle over respect for autonomy. The ethical principle of autonomy is provided in Section 24 of the Mental Capacity Act 2015 which provides that any person above the age of 18 years and with capacity to make such decisions, can reject specified medical treatment in the future, provided that such circumstances have arisen, and providing that they have lost capacity at the future date to make such decisions. Section 24 is a statement of the nature and extent of the influence of autonomy in the making of the decisions related to medical treatment of the individual. Although, the law provides autonomy to the individual to deny treatment, there are also conditions wherein the Advanced Directives may be held to be invalid; these are provided in Section 25 (2) of the Mental Capacity Act 2015. Thus, the Advanced Directives are not effective where the patient has withdrawn the decision at a time when he had capacity to do so, or has given a power to the donee of a lasting power of attorney to give or refuse consent to the treatment to which the advance decision relates, or does anything clearly inconsistent with the advance decision remaining his fixed decision. It would be pertinent to note that in the case of power of attorney being given to someone, the individual is effectively giving the authority to another person to make such decisions on his behalf and in the case of doing something inconsistent with the Advanced Directives, such authority may be acquired by the court. In Re E, an individual’s Advanced Directive became effective before her lasting power of attorney was recorded, which led to the situation that her lasting power of attorney invalidated her previous Directives. The court however, used its power under Section 26 to declare the Directive valid. In this situation, the interesting perspective is that while the individual did provide power of attorney, which would have allowed the donee to make the decisions for the individual, the court was able to use its power to hold the Advanced Directive valid despite the power of attorney. A question may be raised as to whether this decision of the court may not be seen as a breach of the autonomy of the individual because the individual himself decided to give a lasting power of attorney to the donee, which meant that they accepted that the donee’s decision could be prioritised over the Advanced Directive. A situation where the ethical principle of autonomy may be affected by the courts is under Section 25 of the MCA which allows invalidation of the Advance Directive based on an “inconsistent action” of the patient. Although, the patient is themselves allowed to alter or withdraw the advance directive (Section 24(3)), which is a clearer way to invalidate an advance directive, the lack of clear definition of what may be an “inconsistent action” of the patient that allows the courts to invalidate the advance directive when the patient themselves have lost capacity to make decisions may be problematic because it has effect on the autonomy of the patient’s own decision. At the same time, there is also a potential for the patient to make contradictory statements later in life to the statements made in the Advanced Directives, which also raise questions with respect to the binding value of the earlier Advanced Directive. In this regard, the following statement in HE v. A Hospital NHS Trust:

“…exceptionally difficult moral, legal and ethical questions … may have to be addressed when a previously competent patient is in the ‘twilight’ position of having lost his capacity to decide whether or not to accept medical treatment but nonetheless remains able, to a greater or lesser extent, to express his wishes and feelings. Is such a patient to be held to his advance directive even if it appears to conflict with his current (incompetent) wishes and feelings?”.

The problem that the above statement reflects on is related to the situation where the patient does not have the capacity or competency to make Advanced Directives or change existing Advanced Directives, but has the ability to express current wishes that are contradictory to the Advanced Directives. Lord Munby’s statement above closes with a question as to whether in such a situation, the patient should be held to his earlier Advanced Directive or his current wishes or demands be given effect to even if he is not competent to make them legally. Section 25(2)(c) of the Mental Capacity Act 2005 may resolve this question to a degree. This provision provides that an Advanced Directive is not valid if the patient “has done anything else clearly inconsistent with the advance decision remaining his fixed decision.” Therefore, there is potential for the Advanced Directives of the patient to not be given effect to if there is anything inconsistent between the provisions of the Advanced Directives and the actions of the patient. However, the problem or confusion remains with regard to a patient who is exhibiting contradictory behaviour with respect to the Advanced Directives, but has lost mental capacity and has no capacity to make decisions. From an ethical perspective (which also interlinks with the legal perspective), the case law demonstrates that the courts consider that a competent adult’s decision in respect of their own treatment is to be treated as sacrosanct, and that there has to be an absolute respect for autonomous adult’s decision to refuse treatment. This also includes the right of the patient to anticipatory refusal of treatment. However, this ethical perspective can also extend to a situation where a person may wish to change or contradict his advanced decisions. The conflict between autonomy of the individual and the paternalism perspective arises where capacity may be lost because lost capacity may mean lost autonomy. While the purpose of the advanced directives is to ensure that advanced planning may be done so as to avoid paternalistic approaches to his medical treatment, the problem may arise when the individual himself undergoes change in approaches or values, and these are no longer reflected in the Advanced Directives. In the UK, unlike France, there is no requirement that Advance Care Directive should be no more than three years old in order to be effective. The French law is a double edged sword in the sense that where it restricts the validity of the Advance Directive to those that are no more than three years old, it also requires the individual to review their Advanced Directives every three years. This allows the individual to reflect their changing perceptions and values in the Advanced Directives. In the UK, there is no such requirement in the law for the Advanced Directives to be reviewed within specified periods of time, which means that the validity of the Directives remains irrespective of how old it is. On the other hand, because there is no requirements to review the Directives, there is also a possible absence of recent changes in the individual’s values and principles and desires with regard to their medical treatment. Section 25(2(c) does not specify whether capacity is required at the time of the inconsistent behaviour. This was the decision of the court in Re Briggs (Incapacitated Person) (Medical Treatment: Best Interests Decision) (No 2)24. Particularly, with respect to Section 25(2)(c), Charles J notes that the section does not specify whether capacity is required at the time of the inconsistent behaviour and that if Section 25 was meant to set a low threshold so as to make it easy to invalidate an Advanced Directives that allowed the doctors or others to make decision favouring preservation of life over prior competently-expressed decisions, then that would not be in accordance with the intention of the Mental Capacity Act in respect of Advanced Directives. Thus, there is potential for situation where the individual may suffer a loss of capacity and may also have the potential for making contradictory statements without legal capacity; however, the court was of the opinion that the threshold for making such decisions cannot be lowered because that would defeat the purpose of the law which tends to prioritise autonomy. What can be surmised is that there is a difficulty that is associated with Section 25(2) in combination with Sections 24 and 26, in that it sets up an internal contradiction. What this means is that while the Mental Capacity Act 2005 is designed to allow individuals to make choices with respect to medical decisions while giving effect to their beliefs and values to have effect in the future, but at the same time, there is an internal contradiction in Section 25(2), which allows the decision of the individual to be invalidated under certain circumstances. The contradiction is that while a person does not have the capacity to make decisions for their healthcare or medical choices, anything done by the person after the loss of their capacity can allow the invalidation of the Advanced Directives. The provisions of Section 25 do not clarify the situation.

In HE v A Hospital NHS Trust, the patient had a living will in which she had specified that she should not be given blood transfusion. Despite this living will, the court allowed the treating doctors to infuse her with blood. The court held that based on the existing law, a competent adult patient has an absolute right to refuse consent to any medical treatment and this extends to a competent adult patient’s anticipatory refusal of consent in an Advanced Directive to be applicable even when the patient has lost their capacity or competency. The court also allowed that there is a presumption of capacity and those who challenge it must establish it. However, because in this case Munby J found that the patient had revoked the Advance Directive (as it pertained to blood transfusion) when she had rejected her faith as a Jehovah’s Witness and converted to Islam. In light of this development, the court decided that in the absence of a valid Advanced Directive, preservation of life and best interests required that she have the blood transfusions and therefore, allowed it. However, it may be questioned that by converting to Islam, the patient had not expressly rejected their Advanced Directive and this was a matter of presumption by the court. In R (Burke) v The General Medical Council and Others, the question of whether the medical professional can decide based on best interests of patients, or whether the court has to be involved in every such decision. The Court held that the evaluation of best interests “involves a welfare appraisal in the widest sense, taking account, where appropriate, [of] a wide range of ethical, social, moral, emotional and welfare considerations,” which includes listening to family members as well as the GP so as to gain a holistic appreciation of what the patient would likely have wanted if able to make a treatment decision for himself. This suggests that even in the case of the substitute decision makers, they are required to consider what the wishes of the patient might have been based on a holistic consideration. The major question is how does the best interest standard respond to cases where decision relates to life-sustaining treatment and the advance directive has been invalidated and how does the best interest standard respond to emerging options. The first point to note is that the Mental Capacity Act 2005 does not define the underlying concept of best interests while the factors that must be considered in determining best interests have been listed; importantly, the Code of Practice states that this list is incomplete. It is also noteworthy that there are three aspects to decision making of the patient. The first is that the law recognises the right of the patient to make a valid choice at the time the decision needs to be taken. The second is that in the event when the patient lacks capacity and cannot be enabled to gain capacity, then effect is to be given to any Advanced Directives made by the patient. The third is that in the event the patient lacks capacity, and cannot be enabled to gain capacity, and no Advanced Directives exist then the best interests principle comes into play for how patient should be treated. These best interests checklist is provided in Section 4(6) of the Mental Capacity Act 2005 as a checklist of factors that must be considered ‘‘as far as is reasonably ascertainable’’ in determining best interests of the patients as follows: “a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). ‘‘(b) the beliefs and values that would be likely to influence his decision if he had capacity, and ‘‘(c) the other factors that he would be likely to consider if he were able to do so.”

Looking for further insights on Venous Thrombosis Risks in Stroke ? Click here.

The Code of Practice explains in Section 5.6 that the Section 4(6) checklist is only the starting point and is not an exhaustive list of factors that are to be considered for determining the best interests of the patient. Furthermore, there is an expansion of what these factors are in the Code of Practice in Section 5.46 where it states the following as factors: ‘‘Evidence of a person’s beliefs and values can be found in things like their: cultural background; religious beliefs; political convictions; or past behaviour and habits.’’ Furthermore, in Section 5.47, the Code of Practice states that the decision-makers are required “to consider any other factors the person who lacks capacity would consider if they were able to do so. This might include the effect of the decision on other people, obligations to dependants or the duties of a responsible citizen.’’ What is reiterated in the Code of Practice is that MCA does not define best interests and instead of that it provides a checklist, which is not an exhaustive checklist. It is a matter worth noting that the Mental Capacity Act 2005 does not expressly explain or provide an objective or definition of best interests. What is explained is that best interests principle is to be applied under certain circumstances. The Code of Practice does clarify that best interests is not defined because so many different types of decisions and actions are covered by the Act, and so many different people and circumstances are affected by it; this is explained in Section 5.5. This would suggest that there is a complexity associated with how people make such decisions and presumably this means that there should not be a narrow definition of best interests which may not be able to take into consideration the complexity of Advanced Directives. Nevertheless, the difficulty with the Mental Capacity Act 2005 is that where it does not define best interests, it does allow the application of this principle. At the same time, it allows the decision-maker to use the idea of the internal sense of hypothetical choice or substituted judgement, based on little guidance for the decision-maker because of the unexhaustive list of factors that are to be taken into consideration. This means that there is a gap in the law because when best interests principle is to be applied, then the substitute decision maker applies this on the basis of the imagined choices. With regard to emerging treatments that the patient may not have had access to when making their Advanced Directive, the question is whether the values of the patient can also be presumed to have changed with time, which may justify the use of best interests principle to supplement the decision of the patient with that of the substituted decision maker who now has access to emerging treatments. An example can be taken of advances in medical technology that may enable a dying patient to be kept alive for longer, but would that justify the application of the best interests to lengthen their life when this may be contrary to the values of the patient as expressed in the Advanced Directives. It is also noteworthy that these new and emerging developments in medical care have raised the need for health professionals to respect patient choice with regard to their right of autonomy and the past concept of application of paternalism approach where the patients nearing the end of their lives might have been content with allowing doctors to make decisions on their behalf, is not longer appropriate. Then there are situations where a person has not made an Advanced Directive, or could never have been in a position to make an Advanced Directive due to their mental condition, and this may allow medical professionals to take decisions on behalf of the person. This happened in a case where medical practitioners wanted to sterilise a mentally handicapped woman who is unable to consent on the basis that doing so was in her best interest. The patient was a thirty-six year-old mentally handicapped woman who lived voluntarily in a mental hospital and had developed a sexual relationship with a male patient. Being of the view that the patient could not cope with pregnancy and childbirth and it would be in her best interests to be sterilised, the medical professionals sought this and the mother of the patient opposed this for lack of consent. The House of Lords held that although the under the common law a doctor was able to operate on a patient who was unable to consent when it was in the patient’s best interest and therefore the consent of the court was not strictly necessary, given the particular nature of sterilisation, the court should be consulted in these circumstances. The House of Lords allowed the doctors to carry out the procedure without consent on the basis of best interests.

Chapter 5: Conclusion

There were two principal research questions in this research study. The first research question was whether advance directives can pose conflict between two or more ethical principles, and if such conflict is posed, then which ethical principle should prevail. The second research question was whether the MCA responds to the key ethical issues involved in Advance Directives, namely, the conflict between the principle of respect for autonomy and principle of beneficence. There are ethical as well as legal issues and questions that are involved in the law of Advanced Directives as contained in the Mental Capacity Act 2005. Based on the literature around the relevant provisions of the Mental Capacity Act 2005, and the case law decided by the courts, this dissertation has arrived at certain conclusions related to the research questions that are discussed in this last chapter of the dissertation.

What Makes Us Unique

24/7 Customer Support
100% Customer Satisfaction
No Privacy Violation
Quick Services
Subject Experts