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Oxford Journal of Legal Studies Advance Access originally published online on March 8, 2006
Oxford Journal of Legal Studies 2007 27(2):257-280; doi:10.1093/ojls/gqi040
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© The Author 2005. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org

Trial and Error at the End of Life—No Harm Done?

Sabine Michalowski*

* Senior Lecturer, University of Essex, email: smichal{at}essex.ac.uk.


  Abstract

English law gives the competent patient the right to refuse life-saving medical treatment, either contemporaneously or in an advance directive, and a physician commits a battery when treating a patient who validly refused treatment. However, with regard to the details of a physician's liability, many questions remain unanswered, and it is not at all clear under what circumstances a patient's tort action for unwanted life-saving treatment will succeed, and what remedies would be available to the patient. The article suggests that a physician should be liable in battery for administering life-saving treatment, even if he/she had doubts about the validity of the patient's treatment refusal, unless a defence of reasonable mistake can be established. Furthermore, in case of a battery which resulted in keeping the patient alive, the patient should not only be able to claim nominal damages, but general and special damages, including mental and physical pain and suffering caused by the prolongation of the patient's life, should equally be available.


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