The right to choose A


MIDDLE-AGED patient is diagnosed with a recurrence of a cancer. Te doctor explains the treatment options, including one rather taxing regimen with excellent clinical


outcomes. Te patient returns with a decision not to undergo any further treatment. He says: “Enough is enough. We all die eventually.” A 28-year-old pregnant patient with placenta previa signs a


directive refusing any blood products in accordance with her beliefs. Doctors can find it difficult to accept when patients choose to


refuse treatment; particularly when beneficial or potentially life-saving treatment is available. Such “inaction” can seem to run counter to the professional instinct to help someone in difficulty or suffering: the desire to preserve life or to avoid the perceived failure that comes with a patient’s death. Whatever the reason, the GMC reminds us that we must set aside our own beliefs when making the care of patients our primary concern. Sometimes the law provides a solution to such dilemmas,


particularly when a patient refusing treatment is assessed to lack the capacity to make such a decision. Te Mental Capacity Act (MCA, England and Wales) and the Adults with Incapacity Act (AWIA, Scotland) both require that decisions about medical treatment are directed by a patient’s best interests – in other words what would be of overall benefit to that person, taking into account both clinical and non-clinical considerations. Tis may not be a straightforward decision in itself (or a foregone conclusion that treatment is in that person’s best interests), and a doctor may feel more comfortable with a team approach to decision-making rather than individually facing a patient refusing treatment.


An absolute right to refuse treatment But what about the more challenging scenario of a competent adult patient who refuses treatment? Firstly, case law clearly sets out the rights of patients and duties of doctors in this regard. While doctors are not obliged to provide a requested treatment which they believe, aſter appropriate assessment, is not clinically indicated or of overall benefit to the patient (notably in the case of Burke v GMC), they certainly are obliged to respect a competent person’s decision not to consent to treatment (considered in Re MB (An Adult: Medical Treatment)). In the latter case, the court held that such a person has


an “absolute right” to refuse medical treatment “for any reason, rational or irrational, or for no reason at all,” even where this choice may result in their death. Secondly, statute in England and Wales entrenches the right of


an individual to refuse treatment through an advance decision. Although the AWIA does not include a similar right for persons in Scotland, a valid and applicable advance directive (its terminology north of the border) is likely to be respected if challenged in court. Te MCA allows a person, aged 18 and over whilst still


competent, to make an advance decision about the treatment and care that they wish for a time in the future when they may lack the capacity to consent to or refuse that treatment. Individuals can only make advance decisions to refuse treatment (rather than demand treatment) and cannot refuse in advance basic or essential care needed to keep them comfortable. Te MCA specifies very little formality in regard to the format


of an advance decision, apart from when the decisions relate to life-sustaining treatment (these must be in writing and witnessed). All other decisions may be written or verbal, and a clinician may record a verbal advance decision in a patient’s medical notes.


Good medical practice When a patient refuses treatment, a practitioner may explore the reasons for this – as the patient allows – also considering if (and how) the patient’s physical comorbidity, mental health and social circumstances are affecting decision-making. Communication remains crucial in such


cases, and the GMC’s Good Medical Practice reminds doctors that they must give patients the information they want or need to know in a way they can understand, taking care


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SUMMONS


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