Consent, Capacity and the Withholding of Life-Sustaining Treatment: A Comparative Legal Perspective

Introduction:

Consent, Capacity and withholding life-sustaining treatment raises difficult questions regarding patient autonomy, the protection of life and legal responsibilities of doctors. These issues are governed by constitutional principles and provisions of Pakistan Penal Code 1860 yet there is no comprehensive statutory framework present which regulates end of life medical treatment. Through this uncertainty is created when a patient says no to life-sustaining treatment or when he loses capacity. Through this paper Pakistan’s legal position is examined concerning consent, capacity before analyzing the legal status of withholding life-sustaining treatment. It also concerns a doctor’s positions and legal consequences when respecting a patient’s valid refusal. At the end Pakistan position is compared to United Kingdom to identify legal gaps in the existing law and possible areas requiring legal reforms.

Consent:

Medical treatment ordinarily involves with interfering with a person’s body, therefore making consent which need to be valid and informed necessary. In Pakistan consent is fundamental in medical law. Consent not only protects a patient’s autonomy by recognizing that a competent patient can make decisions regarding what may occur to their own body and medical treatment, but also reinforces constitutional values such as human dignity, liberty and personal freedom.

As stated under Article 9[1] of the Constitution of Pakistan 1973 every person has protection of life and liberty. Article 14[2] provides that the dignity of a man is inviolable. A patient should not be forced to undergo medical intervention; through these provisions a constitutional foundation is provided which is necessary for respecting the wishes of a competent patient regarding their medical treatment. Valid consent is significant meaning that the patient should have sufficient information about the diagnosis which is proposed, the treatment expected and any necessary risks that may be involved along with the consequences of denying the treatment. This perspective is consonant with the common-law understanding of valid consent, which underscores that consent given by a patient with prerequisite capacity, voluntariness and on the grounds to determine if consent is legally effective [3]. The consent given should be voluntary. It should not be through coercion, material misconception, undue influence and fraud[4]

Though the Pakistan Penal Code 1860 does recognize consent it fails to provide the necessary framework needed for consent to life for life-sustaining treatment. Section 88[5] protects certain act done in good faith for a person’s benefit where there is no intention to cause death. However, this section does not explicitly explain whether or not a competent patient can refuse or withdraw life-sustaining treatment even it may result in death. Section 89[6] acts done in good faith for the benefit of a child under twelve or a person of unsound mind. This specific provision demonstrates that consent and capacity are interconnected. This shows that when patient is incapable of making an autonomous decision the law may decide who can make decisions and under which conditions. Section 90[7] shows consent is not legally valid when obtained under fear or misconception. This indicates the fundamental principle that consent must stem from meaningful and voluntary choice rather than a mere procedural formality.

This get more complicated when a competent patient refuses life-sustaining treatment such as dialysis, ventilation or any other treatment should be identified distinct from an act aimed to cause death. Here a broader question is raised of whether respect for patient autonomy enables a competent patient to refuse treatment even if the refusal may end in death.

The Constitution of Pakistan and Pakistan Penal Code establish constitutional basis for patient autonomy and informed consent while provisions such as s88, s89, s90 of PPC establishes legal basis any type of treatment carried out with consent or in good faith with no intention to cause death. A dedicated framework is what remains absent which is particularly important in cases involving serious or life-threatening condition. This becomes more profound in cases where life-sustaining care is required, where the legal effectiveness of the decision lies essentially with the capacity of the patient to provide or refuse consent. The following section examines the relation of consent and capacity.

Capacity:

The only way a patient genuine autonomy is represented is if he possesses the ability to make a particular decision. Capacity is not simply a matter of whether a patient possess any mental or physical illness. It is concerned with if an individual is capable of making a particular decision at the relevant time. In life-sustaining treatment this issue becomes more significant because refusing treatment could possibly lead to death. Therefore, the legal focus should be on the patient ability to make a decision rather than which one produces a medically desirable outcome[8].

A particularly helpful statutory model can be found in the Mental Capacity Act 2005 England and Whales. Section 1[9] is concerned with establishing a presumption of capacity and provides that a person should be treated as unable to make a particular decision just because of one unwise decision. Section 2 and 3 embrace a decision specific and practical approach. A person may lack capacity where they cannot understand, retain, use or weigh relevant information or communicate their decision[10].The importance of this approach is that is differentiates between incapacity and medical diagnosis. This shows that the seriousness of a patient illness nor the likely result of their decision established that they lack capacity on its own.

Now, who determines capacity is an equally important question. Under the Mental Capacity Act the assessment is connected to the person concerned with the patient care or treatment and is made in relation to the particular decision[11]. This establishes a more structured process rather than leaving the decision solely up to the discretion of the family or the subjective opinion of healthcare professionals. This principle can be seen in Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290 in which the court considered whether a seriously ill patient had sufficient capacity to deny treatment. This case shows that a patient may retain capacity to refuse treatment when if the decision may appear illogical or contrary to medical advice[12].

Pakistan position is not clearly established as it does not have a specific statutory framework establishing who must determine capacity in life-sustaining treatment neither a practical test equivalent to Mental Capacity Act. This creates legal issue. Although doctors possess expertise to asses a patient cognitive ability, its legal limitation remain insufficiently defined. Relatives may provide evidence regarding the patient’s wishes but this should not override the patient’s own preference or should not automatically attain authority to declare incapacity.

When the patient lacks capacity the uncertainty increases as Pakistan does not possess a statutory framework specifically regulating advance directive surrogates’ decision making or the DNR orders. Thus, it remains unclear to what extent the patient’s wishes should be followed after incapacity and how those wishes should be balanced in the view of medical judgement and relatives. By comparison Section 24 to 26 of Mental Capacity Act provides a statutory framework for advance decision refusing treatment[13]. This illustrates how a legislation may preserve patient autonomy even after capacity is lost.

Capacity forms a legal link between capacity and withholding life-sustaining treatment. where patients’ capacity exits the patients, decision should be held foundational. In the absence of capacity, the law must determine whose decision must take effect and what evidence should be used to identify the patient’s wishes. This transition remains inconclusive due to the absence of a clear Pakistani framework leading directly to question when life-sustaining treatment may be withheld.

Withholding Life-Sustaining Treatment:

By establishing the principles of consent and capacity the upcoming question becomes how these principles operate when life sustaining treatment is refused or the patient cannot consent to it. Withholding treatment means not to make any interventions which may prolong the patient’s life for instance incubation while withdrawing treatment mean to stop the treatment which has commenced. This distinction is pivotal as allowing death to occur through refusing and withdrawing is legally different from causing death deliberately. It is recognized by the American Medical Association that a person with decision making capacity may refuse life-sustaining treatment even if it may result in death.[14] In Airedale NHS Trust v Bland [1993] AC 789 the House of Lords considered that withdrawal of artificial nutrition and hydration as legally distinct from an intentional act of killing.[15]

The central problem in Pakistan is that a comprehensive legislation to specifically regulate the withdrawing and withholding of life-sustaining treatment does not exist. Section 88 to 90[16] of Pakistan Penal Code 1860 addresses consent only in limited circumstances and do not state clearly at which point a competent patient may refuse life-sustaining treatment or when it may be withheld when the patient has lost capacity. Section 300 [17]defines Qatl-i-amd and Section 302[18] states the punishment and are only relevant at outer criminal boundary. These provisions do not resolve whether following the patient’s wishes amounts to unlawful killing. The key determining factor lies if whether the physician actively caused death or where the wishes of the patient to decline the treatment were upheld and respected.

This creates constitutional tension between protection of life and patient autonomy. As previously mentioned, Article 9 and Article 14 of the Pakistan Constitution neither of this provision requires a competent patient to accept life-sustaining treatment against their own wishes. Treating right to life as absolute obligation risks undermining a patient autonomy but at the same time a patient autonomy does not mean recognizing a constitutional right for active euthanasia.

An equally important role is of the doctor. Can a doctor be held liable for respecting a refusal even if it may result in death. A competent patients refusal raises the question of whether the doctor needs to continue the treatment despite refusal. A specific statutory protection for those doctors who respect the refusal of the patient is not present in Pakistani Law. This introduces uncertainty between potential criminal and professional liability. Doctors should evaluate and document a patient informed consent and voluntariness. When the patient lack capacity, the position becomes more delicate because of the previous wishes expressed and the present authorities.

Cruzan v Director Missouri Department of Health 497 US 261 (1990) shows the difficulty by recognizing refusal of life sustaining treatment while allowing safeguards where the patient lacks capacity.[19] Although it is not binding in Pakistan, this shows the need for clear rules which protect both patient autonomy and the doctor respecting the wishes.

The legal gap present in Pakistan is not that withholding treatment is prohibited but that it is not clearly established in law when it is lawful or when a doctor is protected for respecting the wishes of the patient. More clearer and transparent rules on consent, capacity, informed refusal would help in protecting both patient autonomy and doctor.

Comparative Legal Perspective:

From a comparative perspective between Pakistan and United Kingdom illustrates that the principal lacuna in Pakistani law lies not in the absence of legal principle which govern consent and capacity but rather in the absence of a clear statutory framework by implementing those principals to life-sustaining treatment. That being said, these provisions do not transparently establish at what moment a competent person’s refusal regarding life-sustaining treatment must be respected or what happens when patient lacks capacity. Through Article 9 and 14 of the Constitution of Pakistan protect life and dignity while through section 88 to 90 of Pakistan Penal Code it recognizes consent in limited circumstances. Therefore, the issue at core is not about the legal rights rather the absence of a coherent mechanism through which these rights can be carried out.

The United Kingdom deals with these questions more methodically through the Mental Capacity Act. Sections 1 to 3 establish a presumption of capacity and require capacity to be assessed in relation to the particular decision. [20]Sections 24 to 26 provide a legal framework for advance decisions refusing treatment.[21] The importance of this of this framework for Pakistan is not merely that UK has a more detailed legislation rather it demonstrates that a patient autonomy can be protected without treating it as an unrestricted right to death. Through a statutory capacity test, it can be determined whether or not a patient decision is legally authoritative or not while advance decision is capable of preserving the patient’s decision after capacity is lost.

The difference becomes more significant when life-sustaining treatment is refused. A comprehensive statutory procedure specifically for how a doctor should verify informed refusal or to determine if the refusal is still applicable after capacity is lost is missing in Pakistan. By contrast the framework present in UK reduces this uncertainty by distinguishing decision made by competent patients possessing capacity from those made on behalf of the patient when they cannot make decision by themselves.

A case which establishes a boundary between respecting wishes and intentionally causing death can be seen. In Airedale NHS Trust v Bland [1993] AC 789 the House of Lords considered withdrawal of life sustaining treatment and distinguished such conduct from an intention to kill.[22] In particularly this distinction is very relevant as in Pakistan because Section 300 PPC defines Qatl-i-amd while Section 302 provides its punishment. Though neither of these provisions specifically addresses the legal position concerning the withholding or withdrawal of life sustaining treatment[23].

The UK model should not simply be transplanted in Pakistan, while it does show clearer and transparent rules on capacity, advance decisions, surrogate decisions along with treatment withdrawal. Reducing uncertainty for doctors and protecting patient autonomy could be done through a similar legislation.

Conclusion:

Important principles regarding consent and capacity are recognized in Pakistani Law but a clear framework is not provided for withholding or withdrawing life-sustaining treatment. The greatest uncertainty lies with patient who lack capacity, advance decisions, surrogate decision and legal principle when doctors respect the valid refusal the patient gives. A comparison with UK shows that a clear statutory framework upholds a patient autonomy along with preserving medical professionals. Pakistan would benefit greatly from a clear and transparent statutory framework which would regulate advance decisions, surrogate decision making and the withholding and withdrawing life-sustaining treatment while continuing to uphold constitutional rights to life and dignity.  

Bibliography:

Legislations:

Constitution of the Islamic Republic of Pakistan 1973

Mental Capacity Act 2005

Pakistan Penal Code 1860

Cases:

Airedale NHS Trust v Bland [1993] AC 789 (HL)

Cruzan v Director, Missouri Department of Health 497 US 261 (1990)

Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290

Books:

Bowman D, Spicer J and Iqbal R, ‘Voluntariness: the Freedom to Choose’ in Informed Consent: A Primer for Clinical Practice (Cambridge University Press 2012) 56

British Medical Association and Law Society, Assessment of Mental Capacity: Guidance for Doctors and Lawyers (3rd edn, BMJ Books 2009).

American Medical Association, ‘Opinion 5.3: Withholding or Withdrawing Life-Sustaining Treatment’ AMA Code of Medical Ethics (2017)

Journal Article:

Chico V and Taylor M, ‘Using and Disclosing Confidential Patient Information and the English Common Law: What Are the Information Requirements of a Valid Consent?’ (2018) 26 Medical Law Review 51.

Websites:

https://na.gov.pk/uploads/documents/1333523681_951.pdf accessed on 4 August 2026 

https://www.legislation.gov.uk/ukpga/2005/9/contents accessed on 4 August 2026

https://www.fmu.gov.pk/docs/laws/Pakistan%20Penal%20Code.pdf accessed on 4 August 2026

https://www.lawteacher.net/cases/airedale-nhs-trust-v-bland.php accessed on 4 August 2026

https://supreme.justia.com/cases/federal/us/497/261/ accessed on 5 August 2026

https://pubmed.ncbi.nlm.nih.gov/12041270/ accessed on 5 August 2026

 http://assets.cambridge.org/97811076/88063/frontmatter/9781107688063_frontmatter.pdf accessed on 5 August 2026

https://api.pageplace.de/preview/DT0400.9780470757307_A23900331/preview-9780470757307_A23900331.pdf accessed on 5 August 2026

https://code-medical-ethics.ama-assn.org/ethics-opinions/withholding-or-withdrawing-life-sustaining-treatment accessed on 4 August 2026

https://pubmed.ncbi.nlm.nih.gov/28981744/ accessed on 5 August 2026

[1] Constitution of Pakistan Article 9

[2] Constitution of Pakistan Article 14

[3] Victoria Chico and Mark Taylor Using and Disclosing Confidential Patient Information and The English Common Law: What are the Information Requirements of a Valid Consent? (2018) 26 Medical law review 51

[4] Deborah Bowman, John Spicer and Rehana Iqbal, ‘Voluntariness’ in informed consent (Cambridge University Press 2012).

[5] Pakistan Penal Code !860 s 88

[6] Pakistan Penal Code 1860 s 89

[7] Pakistan Penal Code 1860 s 90

[8] British Medical Association and Law Society, Assessment of Mental Capacity: Guidance for Doctors and Lawyers.

[9] Mental Capacity Act s1

[10] Mental Capacity Act ss2-3

[11] Mental Capacity Act s2

[12] Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290.

[13] Mental Capacity Act ss24-26

[14] American Medical Association Code of Medical Ethics Opinion 5.3

[15] Airedale NHS Trust v Bland [1993] AC 789

[16] Pakistan Penal Code ss88 to 90

[17] Pakistan Penal Code s300

[18] Pakistan Penal Code s302

[19] Cruzan v Director Missouri Department of Health 497 US 261 (1990).

[20] Mental Capacity Act 2005, ss 1–3.

[21] Mental Capacity Act 2005, ss 24–26.

[22] Bland n (15)

[23] Pakistan Penal Code 1860, ss 300, 302