HE v Hospital NHS Trust & Anor

Ms Isin Vahib (of Vahib & Co) for the claimant (father) The Official Solicitor for the second defendant (the patient) The first defendant (the hospital) was neither present nor represented ____________________

i) A competent adult patient has an absolute right to refuse consent to any medical treatment or invasive procedure, whether the reasons are rational, irrational, unknown or non-existent, and even if the result of refusal is the certainty of death. I agree with Professor Andrew Grubb's observation (see [2002] Med L Rev 201 at 203) that:

ii) Consistently with this, a competent adult patient's anticipatory refusal of consent (a so-called 'advance directive' or 'living will') remains binding and effective notwithstanding that the patient has subsequently become and remains incompetent.

iii) An adult is presumed to have capacity, so the burden of proof is on those who seek to rebut the presumption and who assert a lack of capacity. It is therefore for those who assert that an adult was not competent at the time he made his advance directive to prove that fact.

i) There are no formal requirements for a valid advance directive. An advance directive need not be either in or evidenced by writing. An advance directive may be oral or in writing.