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