The right direction?

The decision to let Kerrie Wooltorton die represents, for some, a tragic waste of human life and signals a further erosion of the traditional sanctity of life principle which has underpinned the practice of medicine for centuries. By contrast, for many others it emphasises the fundamental weight that must be afforded to the clear, informed choices of autonomous patients who have refused to consent to medical treatment knowing that this refusal will result in their imminent death.

Kerrie Wooltorton, aged 26, who was suffering depression due to her inability to have a child, drank poison (anti-freeze), at home and then, bizarrely, called an ambulance. She was taken to the accident and emergency department at Norfolk and Norwich Hospital where she handed over a letter in which she stated she was '100 per cent aware of the consequences' of her actions and did not want to be treated. Moreover, she also made her wishes clear verbally.

The letter, effectively an advance directive '“ commonly known as a living will '“ added that if she called for an ambulance that was not tantamount to a plea for treatment but rather was because she did not want to die alone, uncomfortably, in pain. She then became unconscious and died in hospital the next day.

A legal and ethical minefield

The decision of doctors to acquiesce and condone letting a young healthy 26-year-old woman commit suicide in their hospital department '“ especially given she was depressed '“ is initially shocking and intuitively morally repugnant.

However, both suicide and attempted suicide were decriminalised 48 years ago, by virtue of section 1 of the Suicide Act 1961, and a succession of more recent high-profile cases have accepted the right of a conscious, competent, adult patient to refuse life-saving treatment.

In Re W [1993] Fam. 64, Lord Donaldson MR stated a competent, conscious adult patient can refuse treatment for rational or irrational reasons, reasons that don't exist, no reasons or religious reasons, even if that results in their death or serious injury. That is the essence and ultimate consequence of respecting patient autonomy; quite literally the patient's ability to make life or death decisions. Here it trumps and prevails over medical paternalism or, alternatively, appeals to alleged violations of the Hippocratic oath, or transgressions against religious commandments or indeed the ethical principle of the sanctity of life. Several leading cases (including Re B [2002] EWHC 429 and Re C [1994] 1 All ER 819) provide authority for the serious repercussions that flow from a failure by doctors to respect the autonomous decision of an adult patient refusing treatment '“ namely an action in battery, or even criminal assault.

Section 1(2) of the Mental Capacity Act 2005, (MCA), effective in October 2007, provides: 'A person must be assumed to have capacity unless it is established that he lacks capacity,' and furthermore that, inter alia, (section 2(4) MCA) 'whether a person lacks capacity'¦ must be decided on the balance of probabilities', the legal burden being on the party asserting the patient is lacking capacity.

Section 2(1) MCA states a person lacks capacity 'if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain'. Then section 3 MCA provides that a person will be unable to make a decision for himself if he is unable:

'(a) to understand the information relevant to the decision;

(b) to retain that information;

(c) to use or weigh that information as part of the process of making the decision; or

(d) to communicate his decision (whether by talking, using sign language or any other communication)'.

The psychiatrist who saw Wooltorton before her death told the inquest he believed she had mental capacity to make the advance directive.

A valid decision

Advance directives are now governed by MCA, and section 26(1) provides that if that patient (P) has made an advance decision which is both valid and applicable to a treatment, 'the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued'.

Advance decisions about life-sustaining treatment must (section 25 (6) MCA) be in writing, signed by P, or another person in P's presence and by P's direction, their signature must be made or acknowledged by P in the presence of a witness, and the witness must sign it, or acknowledge his signature in P's presence, and, furthermore, the decision, (section 25(5)(a)) must be verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk.

It is a moot point (not yet tested in court) whether Wooltorton's act of calling the ambulance after she drank the poison rendered her advance decision not valid and binding under section 25(2) MCA, given that arguably Wooltorton had done 'anything else clearly inconsistent with the advance decision remaining [her] fixed decision' (section 25(c)). However, the case demonstrates the potentially wide scope of advance directives, not just being confined to and used by terminally/seriously ill patients.

Additionally, the case should be viewed as a significant boost to promoting respect for patient autonomy. Wooltorton's clear wish to be left to die was evident in the 'double-lock' of her advance directive and her verbal instructions to the doctors. The decision does not condone suicide, but rather respects patients' decisions to refuse treatment.