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Making Decisions

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  1. 1.

    Martin sought to remain anonymous and this name is, therefore, a pseudonym.

  2. 2.

    GMC: General Medical Council; SRA: Solicitors Regulation Authority.

  3. 3.

    This seems to be a reference to an independent mental capacity advocate (IMCA): an independent advocate whose role is established by the Mental Capacity Act 2005 (MCA). The official document explaining the role of an IMCA states that “[t]he IMCA service is provided for any person aged 16 years or older who has no one able to support and represent them and who lacks capacity to make a decision … [of a various kinds]” (Department of Health and Office of the Public Guardian 2009, 14).

  4. 4.

    The latter of which was said to be a “physical addiction” (para 29).

  5. 5.

    Which did little more than codify the preexisting common law and stipulate certain formalities in respect of decisions to refuse life-saving or -sustaining treatment.

  6. 6.

    Artificial nutrition and hydration can constitute treatment under current General Medical Council (GMC) rules: R (On the Application of Oliver Leslie Burke) v GMC [2005] 3 WLR 1132.

  7. 7.

    This kind of generalised conclusion is at odds with the spirit of the MCA, which stipulates that capacity is to be assessed in relation to specific decisions when they arise (Department for Constitutional Affairs 2007, para 4.3).

  8. 8.

    It would therefore be of great interest to learn the details of the IMCA’s advice at this stage, but if E was following the IMCA’s advice in making the advance decision (as the judgment tacitly suggests), it would suggest they believed E had the requisite capacity.

  9. 9.

    In respect of life-sustaining treatment, advance decisions must be made in writing and must be signed (MCA s 25(5)–(6)).

  10. 10.

    See Jackson (1994, 56).


  1. Airedale NHS Trust v Bland [1993] AC 789.

  2. Australian Competition and Consumer Commission v Allergy Pathway (No 2) [2011] FCA 74.

  3. Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd and Keir [2009] FCA 960.

  4. R (On the Application of Oliver Leslie Burke) v GMC [2005] 3 WLR 1132.

  5. Re B (adult: refusal of medical treatment) [2002] EWHC 429 (Fam).

  6. Re E (Medical Treatment: Anorexia) (Rev 1) [2012] EWHC 1639 (COP) (EWHC (COP) 2012).

  7. Re T (Adult: Refusal of Treatment) [1993] Fam 95.


  1. Department for Constitutional Affairs. 2007. Mental Capacity Act 2005: Code of practice. London: The Stationary Office.

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  2. European Convention on Human Rights (as amended by protocols nos. 11 and 14). 2010. Convention for the protection of human rights and fundamental freedoms. European Court of Human Rights and Council of Europe Treaty Series.

  3. Gu, P., K.A. Williams, P. Aslani, and B.B. Chaar. 2011. Direct-to-consumer advertising of prescription medicines on the internet: An Australian consumer perspective. Journal of Pharmacy Practice and Research 41(3): 196–202.

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  6. Middleton, J.C. 2012. Direct-to-consumer advertising of prescription drugs and the world of social media: The paradox of advertise first, ensure safety second. Minnesota State Bar Association.

  7. Office of the Public Guardian and Department of Health. 2009. Making decisions: The Independent Mental Capacity Advocate (IMCA) service. OPG606.

  8. U.S. Food and Drug Administration. 2009. Drug advertising: A glossary of terms.

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Tom Hayes is grateful to Richard Huxtable for his comments on an earlier draft of his portion of this work, and the author is responsible for any errors and omissions. The Allergy Pathways portion of this column is adapted from a blog post written by Mabel Tsui on life science companies and their use of social media.

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Correspondence to Bernadette Richards.

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Richards, B., Hayes, T. & Tsui, M. Making Decisions. Bioethical Inquiry 9, 385–393 (2012).

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