Sheila McLean on advance directives and the case of Kerrie Wooltorton

Sheila McLean
The inquest into the death of Kerrie Wooltorton in 2007 has focused some media attention on advance decisions (directives), or so-called ‘living wills’. While undoubtedly a tragic case, however, it is worth unpicking what we can actually learn from it.

Ms Wooltorton had apparently drunk anti-freeze on up to nine previous occasions, but had nonetheless accepted life-saving treatment.   To complicate matters, she was also said to be suffering from an ‘untreatable’ emotionally unstable personality disorder.   The final twist in this complex story was that a few days before her death she had drafted an advance statement indicating that she did not wish to be treated should the same circumstances arise in the future, even if she called an ambulance.    Rather than being treated, she wanted to die in a situation where she was not alone and comfort care was available.   The advance directive was presented by Ms Wooltorton on admission to hospital and when she was still conscious.   Presumably this decision was executed in line with the legislative requirements and was, therefore, valid on its face.

What can be drawn from this case?   First, even although Ms Wooltorton had previously accepted life-saving treatment following ingestion of anti-freeze, no legal inference can necessarily be drawn from this that she would have accepted it on the final occasion.   In other words, even if she had ‘changed her mind’ in the past, objectively she had the right to make a different decision on this occasion.   Second, as she was able to make a contemporaneous refusal of treatment on admission to the hospital, her doctors were legally unable to provide it.  This, of course, depends on the presumption that she was legally competent at the time of the refusal.   The fact that she apparently had some form of personality disorder is not in itself persuasive evidence that she was not competent.   It is well established in law that even the presence of mental illness is not a bar to the presumption of competence.   The Mental Capacity Act 2005 (which does not apply to Scotland) specifically indicates that a person is legally incompetent if s/he is unable to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision, or to communicate his or her decision (whether by talking, using sign language or any other means).   The observation of Ms Wooltorton’s treating physician, which it must be said he took great pains to have verified, was that Ms Wooltorton did not fail the competence test outlined in the Act, and was steadfast in her wish to reject treatment.

Assuming, therefore, that Ms Wooltorton was indeed legally competent, the existence of the advance directive was essentially irrelevant.  Although some media outlets have reported this case as one that is directly related to the advance directive, in fact it is in essence only about a straightforward refusal of consent by a competent adult person.   Simply put, a doctor who imposes treatment in the face of a competent refusal would be guilty of assaulting the patient.   However dreadful it must be for healthcare professionals to watch a person who could be saved die for want of available treatment, they have no alternative but to do so.   The recent legislation makes no change to this position.   Of course, had Ms Wooltorton arrived at hospital in an unconscious state and with no advance directive, the chances are that doctors would have done everything in their power to save her and this would have been justified by the legal doctrine of necessity.   Had she arrived unconscious but with an applicable advance directive, no attempt at treatment would have been lawful.  However, neither of these situations arose.   Ms Wooltorton was adult, competent and able at the relevant time to reject treatment.   This was her right and, as such, had to be respected.

Professor Sheila A M McLean LLB. MLitt, PhD, LLD, LLD, FRSE, FRCGP, F Med Sci, FRCP(Edin), FRSA
International Bar Association Professor of Law and Ethics in Medicine
Director, Institute of Law and Ethics in Medicine at the University of Glasgow

  • Lloyd Davies

    Thank you for a clear and cogent argument. Colleagues of mine (more expert inthe field) have argued that it can often take several days of assessment, to establish a persons lack of capacity (especially where there may be learning disability or cognitive impairment), by for example communcating in different ways, or through people well known to the individual. I believe the law allows for ‘life sustaining treatment ‘whilst a court (the final arbiter in such cases) examines the case, so I think there are exceptions worth pointing out. Similarly where there is evidence of a mental disorder, the MHA may be applicable. While this does not enable physical teatments, there is always debate about how far the consequences of a mental disorder can be treated.certainly it is difficult to treat a dead person! Finally I think it’s helpful to distinguish advance decisions to refuse(legally binding), from advance directives(which are not)

  • Paul Keeley

    Looks like all the duty and responsibility lies on one side (the health professionals) and all the rights lie on the other (the patient). Is there anything worth exploring there? Does it not look assymetrical? Do doctors have any autonomy or are they now clinical castrati?

    Prof McLean’s sangfroid in the face of this grotesque pantomime is noteworthy, but then she can do so from the safe distance of The Professors’ Square at Glasgow Uni. It’s probably why you never hear calls for Philospoher-, Lawyer-, or Poilitician-Assisted Suicide from philosophers, lawyers and politicians.

  • Daniel J Armstrong

    To set out that there was no alternative but to watch this young lady die sets a dangerous precedent for adults with challenging mental health problems.

    I would concur with Lloyd Davies that further assessment in this case would have been heavily indicated. She would unlikely be able to weigh the necessary information in making her decision against the pathological thought processes of borderline trait or depressive cognitions.

  • Edwin Harnell

    Having read about this case I wonder why this woman was not assessed under the MHA to decide her competency, is this the only way competency can be established?

    Am I right in thinking that advanced directives have no force in law in law and had Kerrie arrived at hospital unconscious the team treating her would have been perfectly within their rights to have ignored it?

    That being the case could they have waited for her to have become unconscious and then treated her on the assumption that she may have changed her mind since admission? Can an unconscious person be said to possess capacity?

  • Danny Levy

    As a psychiatrist often called to a&e I deal with cases like this quite often, and I have to say I agree with the other comments here. Assessing capacity is not as straightforward as Prof McClean suggests. Might be worth a look at the other commentary by Steven Reid (a psychiatrist I think):

  • susanne stevens mccabe

    It would be helpful if somebody could clarify the difference between a legally binding advance decision to refuse treatment and an advance directive. (above). In such sensitive areas as these, weasel options which allow the opting out of using Advanced Directives, which although not well enough publicised even yet, are promoted as able to protect both clinicians and individuals making difficult decisions, are likely to generate more criticism in situations where the power differential is great. The fact that a person may be unconcious on arrival at a hospital or other place underlines the usefulness of making the Directive and making it available to clinicians rather than undermines the validity of a decision. (re comment above ‘can an unconscious person possess capacity?) What can be properly assumed perhaps is that a person who drinks anti freeze is in a sad state of mind but it cannot be taken for granted that a decision to die is due to a mental illness. It may be the only way known to work just as in India this is the choice of suicide for many abused women , they may well be ’emotionally unstable’ by then but not lacking capacity. Another aspect to the lady’s decision is that she was described as having an ‘untreatable condition’. Presumably she had been advised of that by those who made the fact public. It would be surprising if that did not contribute to her decision. People with emotional problems described in the way hers have been tend not to receive the best or kindest treatment so she may well have made a considered judgement that life was not worth living in the circumstances and was unlikely to improve. It is notable that far from entering the hospital waving an Advanced Directive as stated in some reports,the person had in fact decided she wanted to die in a sitution where at least at some stage she must have been treated kindly and with the respect clinicians ultimately showed her.

  • In my view we have had a lot a very bad advice from lawyers with regard to the law surrounding the case of Kerrie Wooltorton.

    It is not for us to tell lawyers how to do their jobs but, having trawled through some of the relevant law, I really do wonder if any of the key lawyers involved in this tragic case have it right.

  • donagh

    Prof McLean has given us a cogent summary of the law as it apparently stands. The Mental Capacity Act 2005 provides for a presumption of capacity- and people with capacity are allowed to make unwise decisions. Thus far, the issues of cases such as Ms Wooltorton -tragic as they are- have centred on capacity.There is a body of opinion among GPs & psychiatrists that the belief system that ends in a decision to end one’s life calls into question whether one can truly understand, retain and (most importantly for the belief system) weigh information about the decison. This needs a thorough discussion.

    Additionally, I await with interest what will happen when someone perceived as vulnerable takes their own life using and advance directive. If Ms Wooltorton was in a police or prison cell, the state has a duty of care to those whose liberty it has taken according to our law- see the Reeves or Savage cases. But will coroners see it that way?

    Life’s rich tapestry always has some knots…

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  • jedrin

    Supposing this lady had developed a depressive illness in addition to her BPD. What then? Most severely depressed patients who are suicidal would actually pass the capacity test regarding their desire to die. Should we therefore leave them to die because by law the have capacity to choose death?
    That’s psychiatry out of the window then.

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  • Sarah Woolley

    Psychiatrists will continue (in my personal experience)to ignore Advanced Treatment Refusals even if they are approved by solicitors if they believe it essential to save an individual’s life.

    So much for the Mental Capacity Act!

  • James Smith

    I think it can be argued that if a person is in a state of mind such that they would attempt suicide, they cannot fully understand the implications of their decisions because any information they are given is misunderstood due to their clouded judgement and preoccupation with commiting suicide. Therefore any advance directives they make would be void.