§ Lord Lester of Herne Hillasked Her Majesty's Government:
Further to the Answer by Lord Williams of Mostyn on 20 November 1997 (H.L. Deb., cols. 742–44), whether they consider that doctors have an ethical obligation to comply with advance directives, where the clinical circumstances are such as the patient has considered; and
Further to the Answer by Lord Williams of Mostyn on 20 November 1997 (H.L. Deb., cols. 742–44), whether they consider that a doctor who acts in accordance with an advance directive, where the clinical circumstances are such as the patient has considered, will not be guilty of negligence or any criminal offence.
§ The Minister of State, Department of Health (Baroness Jay of Paddington)It is a general principle of law and medical practice that any person with the mental capacity to make a valid decision may choose whether or not to accept medical treatment. The courts have held that an advance directive is as legally binding on the health care professionals as a current refusal would be, if it is validly made and clearly applicable in the circumstances.
A valid advance refusal must be taken as seriously by a doctor treating an incapacitated patient as he would that patient's expressed views if competent. To ignore it would be a breach of ethical obligations and the common law. However, the British Medical Association states, "If a health professional is involved in the management of a case and cannot for reasons of conscience accede to a patient's request for limitation of treatment, management of that patient must be passed to a colleague".
An advance directive cannot authorise a doctor to do anything illegal. A doctor who acts in accordance with an advance directive which is clearly valid in the circumstances presented, should not be the subject of any legal proceedings. If there is uncertainty about whether an advance directive is valid, the view of the courts should be sought.
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