Suicide by advance decision

Kerrie Wooltorton died because medical professionals decided not to treat her. She had made an advance decision, refusing life-saving treatment. When she arrived at hospital, having poisoned herself for the tenth time, the doctors took the view that her wishes were paramount and to treat her would have been an assault.

Now, however, the Catholic Bishops' Conference of England and Wales has said that it is 'crystal clear', on the basis of paragraph 9.9 of the code of practice to the Mental Capacity Act, that any advance decision framed as a means to commit suicide does not have legal force. I'm afraid I don't agree.

We have to remember, first, that these are the words not of the Act itself, but of the code of practice to the Act. Whilst the code must be given respect, it is simply the government's guidance on the statute. I'm not sure it sets out to make anything 'crystal clear'.

In fact, and with respect to the bishops, I don't think the code says what they say it says. The passage in question is about capacity: in order to make an advance decision that will be binding upon others - so that they cannot give you the treatment you don't want to have - you must possess the necessary mental capacity. All the code says is that if someone is clearly suicidal when they make their advance decision, that may raise doubt about their capacity. There are two points to bear in mind.

First, I'm not sure it has been proved that Ms Wooltorton was suicidal when she made her advance decision. She must, of course, have been considered incapable at the point she presented for treatment (otherwise she would have been asked whether she consented to treatment and the advance directive would have been irrelevant). But that is a quite different thing.

Secondly, all the code says is that in those circumstances doubt might be raised about the patient's capacity. In fact, any such doubt might be allayed by the other circumstances of the case, in so far as they are known to health care providers.

The clinicians who cared for Ms Wooltorton will speak for themselves on this point, but it seems likely they will say that they were satisfied on reasonable grounds that her advance decision was both valid and applicable, and, necessarily, that she was capable when she made it. In other words, they will say that any concerns raised by the code were allayed by their knowledge of the facts of the case. That seems to me to be a reasonable stance. The clinicians, after all, treated Ms Wooltorton; the bishops did not.

The same passage of the code of practice says something else: "It is important to remember that making an advance decision which, if followed, may result in death does not necessarily mean a person is or feels suicidal. Nor does it necessarily mean the person lacks capacity to make the advance decision" [emphasis added]. I don't think this helps the bishops at all. It certainly doesn't make for the 'crystal clarity' they seem to think they have found.

In fact, the position is relatively clear: the MCA says that if, when capable, a person has made a valid, applicable advance decision, the treatment specified in that document cannot be given to him or her. If treatment is given in defiance of the advance decision it might well be an assault and result in challenge under the criminal and/or the civil law, and also in professional disciplinary proceedings.

In my view, the statutory provisions about advance decisions have a delicate balance to strike, but they do that admirably.