In the 2002 case of Re B,the court held that physicians are not lawfully allowed to treat
a competent patient who has refused life-sustaining treatment.244 In this case, Ms B was
a 44-year-old woman who had suffered a haemorrhage in her spinal column, leaving her paralysed from the neck down and dependent on a ventilator to breathe. Ms B instructed her physicians to switch off her life-sustaining ventilator, but they refused on the
grounds that she was not competent. She then sought a court order to declare that the refusal was an unlawful trespass. The court found Ms B to be competent. Dame Elizabeth Butler-Sloss P considered that:
I am…asked…to decide whether [Ms B]…is legally competent to make [the decision whether to require the removal of the artificial ventilation keeping her alive]…Unless the gravity of the illness has affected the patient’s [mental] capacity, a seriously disabled patient has the same rights as the fit
person to respect for personal autonomy.245
Dame Butler-Sloss further stated that those caring for Ms B ‘should not confuse the question of mental capacity with the nature of the decision made by the patient,
244
Re B (Adult: Refusal of Treatment) (ch1 n42). Administering medical treatment without a patient’s consent would be unlawful and amount to trespass, possibly leading to a criminal charge of assault or battery or a civil battery in the law of tort: Bland’s case (ch1 n12) 864.
245
Re B (Adult: Refusal of Treatment) (ch1 n42)[12],[94]. The court also stressed that for a competent patient to exercise autonomy to refuse treatment, they must be in possession of sufficient information regarding the nature, purpose and effects of the proposed treatment, and appreciate them and the consequences of their decision. For ‘respect for autonomy’, see section 3.3.4.
however grave the consequences’, since Ms B’s decision may ‘reflect a difference in
values rather than an absence of competence’.246
Keown argues that Ms B’s request to her physicians to switch off the life-sustaining ventilator may effectively be regarded as a request for physician-assisted suicide. The decision in Re B, according to him, could amount to a judicial extension of the right to
refuse treatment to the right to assisted suicide.247 Keown’s argument is not persuasive
as competent patients have the absolute right to refuse treatment, ‘notwithstanding that
the reasons for making the choice are rational, irrational, unknown or non-existent’.248
The English courts have also expressly stated that refusals of life-sustaining treatment
do not amount to suicide.249 As Lord Goff in Bland’s case held:
there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in so doing. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or could have the effect of prolonging his life, and the doctor has, in
accordance with his duty, complied with his patient’s wishes.250
It is submitted that the case of Re B demonstrates that English law does not recognise a competent person’s right to die with assistance except to the extent that a person can
achieve this goal by exercising their right to refuse treatment.251
It is argued that a comparison made between the cases of Pretty252 (discussed above) and
Re B demonstrates the inconsistency of the current English law on assisted death. Ms B,
who was not terminally ill, was granted a court order which enabled her to die, whilst the terminally ill Mrs Pretty was denied a court order permitting her husband to assist her to travel to Switzerland, for an assisted suicide at Dignitas. Commentators have provided various ethical justifications for reconciling cases such as these. For example, Beauchamp and Childress consider that in cases such as Re B it is the underlying disease or injury that causes the patient’s death rather than the discontinuance of
246 ibid [100].
247
J Keown, ‘The case of Ms B: suicide’s slippery slope?’ (2002)28 J Medical Ethics 238.
248
Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649,653.
249
Secretary of the State for Home Department v Robb (1995) 1 All ER 677.
250
Bland’s case (ch1 n12) 864; Re B (Adult: Refusal of Treatment) (ch1 n42)[23].
251
P Singer, ‘Ms B and Diane Pretty: A Commentary’ (2002)28 J Medical Ethics 234.
252
treatment.253 Pellegrino describes this as ‘letting Nature take its course’,254while McGee
regards this as ‘not taking control of death’.255 Miller, however, convincingly argues that
where life-sustaining treatment is withdrawn from patients like Ms B who are not terminally ill, the cause of death is both the underlying disease or injury and the
withdrawal of treatment.256 He also forcefully argues that if life-sustaining treatment is
withdrawn from a terminally ill patient, it is reasonable to assume that death is caused by the disease, as life is merely prolonged by such treatment. Thus, relying on Miller’s ethical reasoning, by switching off Ms B’s life-sustaining ventilator, the physicians would have contributed to her death. The case of Re B demonstrates that a competent patient, dependent on life-sustaining treatment, may still have some control over the manner and timing of their death under the present law in England and Wales. Thus, it is rightly contended by Brodowski that:
there may be little distinction between the intent of a terminally ill patient who decides to remove her life support and one who seeks the assistance of a doctor in ending her life ... [as in] both situations, the patient is seeking to
hasten a certain, impending death.257
Thus, if patients are able to end their lives by refusing life-sustaining treatment, it is morally indefensible that they are prevented from ending their lives more directly
through lethal medication.258 Many commentators argue that there is the risk of abuse
should physician-assisted suicide be legalised.However, it is submitted that the same
risks of abuse exist in cases where life-sustaining treatment is withheld or withdrawn. As correctly observed by Rothschild, there is no reason why patients and particularly
the old and vulnerable,259 cannot be coerced or pressured into having treatment withheld
or withdrawn which may otherwise save or extend their lives.260
253
TL Beauchamp & JF Childress, Principles of Biomedical Ethics (5th edn, OUP 2001)140.
254
ED Pellegrino, ‘Doctors Must Not Kill’ (1992)3 J Clinical Ethics 95,98.
255
A McGee, ‘Finding a Way through the Ethical and Legal Maze: Withdrawal of Medical Treatment and Euthanasia’ (2005)13(3) Med.Law.Rev. 357. See section 3.3.1.
256 FG Miller, ‘Assisted Suicide Compared with Refusal of Treatment: A Valid Distinction?’ (2000)132 Ann Intern
Med 470
257
H Brodowski, ‘Suffering Against Their Will: The Terminally Ill and Physician Assisted Suicide--a Constitutional Analysis’ (1996)12(1) J.Civ.Rts.&Econ.Dev 171,188.
258
R Magnusson, ‘The Future of the Euthanasia Debate in Australia’ (1996)20 MULR 1108,1126.
259
See section 3.4.6.
260