Avoid abetting suicide

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

The Mental Capacity Act 2005 enables adults to make an Advance Decision to Refuse Treatment (ADRT). The notion that an adult in England could choose to refuse medical treatment, even when his or her own life depended upon it, was settled at common law in the case of Anthony Bland in 1993; '...the principle of self-determination requires that respect must be given to the wishes of the patient...of sound mind who refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged; the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so'.

The ADRT made it possible, in principle, for the capacitous patient to anticipate the circumstances in which he or she would choose to refuse treatment, and record that decision in advance of the moment they became incapacitated. The ADRT was an essential step. Prior to its provision in 2005, whilst the capacitous patient was determined to refuse treatment, in the event that he or she lost capacity, there was a risk that clinicians would then act in best interests, and choose to continue to treat with an intent to keep alive.

Whilst the Act makes it clear that clinical compliance with an ADRT is lawful, a tension remains in circumstances where a patient may be construed as using their advance decision as a tool for suicide.

Such was the perception in the case of Mr JH, a highly accomplished and articulate man in his early 40's who had made an ADRT which applied to any invasive test or treatment, including treatment to sustain life. The local Integrated Care Board (ICB) sought a declaration from the Court of Protection that (i) the ADRT was valid and applicable, but that also (ii) 'that a person does not, therefore, incur liability for the consequence of withholding such tests or treatment from JH'.

If use of an ADRT is viewed through the spectrum of a suicidal act, the Suicide Act 1961 is engaged. Whilst the statute decriminalised the action of intentionally ending one's own life, it nevertheless renders those who aid, abet, counsel or procure the suicide of another person liable to conviction.

Mr JH weighed around 6 stone. He was diagnosed with Autism Spectrum Disorder when 16, and had endured gastrointestinal pain since early adolescence, which had plagued him throughout his life. He had never submitted to gastroscopy or colonoscopy; he told the court that extensive investigations and incessant hospital contact in childhood had left him profoundly anxious. He is now entirely unprepared to attend hospital. No evidence of suicidal intentions was adduced.

Mr JH was blessed with a devoted GP, Dr W, who informed the court that his patient, to control his pain, increasingly avoided eating, now taking less than one 800 calorie Fortsip daily. JH happily meets Dr W, but refuses to be weighed, or be subjected to 'health monitoring'...other than for blood tests, which reveal profound multiple vitamin deficiencies. JH will not accept vaccinations.

The court emphasised that there is ‘…no obligation on a patient, who has decision-making capacity, to accept life saving treatment. Doctors are not entitled to provide treatment in the face of the capacitous patient’s resistance’.

Dr W observed that ‘…JH could die at any time and it is inevitable that his life is going to end sooner than it otherwise would. Although JH recognises this, and I do not doubt his understanding, he has no desire to investigate the causes of his abdominal pain...he believes that he has made a valid and capacitous advance decision to refuse any investigations and therefore professionals should leave him alone...the prospect of those wishes being overridden causes him significant anxiety’.

The court found that JH had the capacity to make decisions regarding refusal of medical treatment at the time that he made his advance decision. The court was required to protect the decisions he was making for himself, irrespective of whether they were objectively ill-advised. The declarations sought by the ICB were granted. Refusing treatment and seeking death are not the same thing.

Robert Wheeler
Department of clinical law