HE v Hospital NHS Trust & Anor

An advance directive refusing medical treatment is an expression of personal autonomy and is inherently revocable. It need not be written, signed or revoked in any prescribed form. Any term purporting to make it irrevocable, or requiring written revocation, is void as contrary to public policy.

The party seeking to establish the directive’s continuing validity and applicability bears the burden of proof. Where life is at stake, clear and convincing evidence is required. Real doubt must be resolved in favour of preserving life. A material change in the circumstances or assumptions underlying the directive may cause it to cease to operate.

The claimant, the father of an unconscious adult patient, sought urgent declarations authorising a hospital to administer blood transfusions and other treatment. The patient had previously signed an advance directive refusing blood products because of her Jehovah’s Witness faith. The father alleged that she had since abandoned that faith and intended to return to Islam.

The court considered whether the advance directive remained valid and applicable, whether its requirement for written revocation was effective, and what treatment was in the patient’s best interests if the directive could not be relied upon.

1. Legal effect of advance directives. A competent adult may refuse any medical treatment, even where refusal will probably or certainly result in death. An anticipatory refusal remains binding after the patient loses capacity, provided it is clearly established and applicable to the circumstances.
2. Burden and standard of proof. The burden of proving the existence and continuing validity and applicability of an advance directive rests on those asserting it. The ordinary civil standard applies, but the evidence must be clear and convincing. The more serious the consequences, the more carefully the evidence must be scrutinised. Any real doubt is resolved in favour of preserving life.
3. Form and revocation. There are no formal requirements for making or revoking an advance directive. It may be oral or written, and a written directive may be revoked orally. An advance directive is inherently revocable. Paragraph 2(d), requiring written revocation, was therefore void as contrary to public policy.
4. Application to the patient. The directive was founded entirely on the patient’s Jehovah’s Witness faith. The evidence that she had deliberately abandoned that faith, stopped attending meetings and intended to revert to Islam showed that the underlying assumption had been destroyed. The directive had consequently ceased to have effect. Alternatively, the evidence created real doubt which had not been displaced by clear and convincing proof.
5. In the absence of a valid directive, treatment had to be provided according to the patient’s best interests. The court declared that the patient lacked capacity and that blood transfusions and other treatment were lawful where considered in her best interests by the treating clinicians. No order was made as to costs.