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Living Wills

ADVANCE DIRECTIVES (SOMETIMES CALLED LIVING WILLS)

A patient’s right to decide

Every mentally competent adult has the right to make decisions concerning his or her health, including the right to refuse medical treatment. The time may arise, however, when an individual becomes unable to make such decisions due to physical or mental incapacity. A person may, for example, suffer a stroke, be involved in an accident or develop dementia and become incapable of making a decision about their medical treatment.

In such circumstances, doctors have a legal and ethical duty to act in the best interests of the patient. British Medical Association guidance to doctors states that relatives should be consulted when considering the best interests of a patient although there is no legal obligation to consult in such circumstances.

The common law recognizes, however, the right of a competent adult to make an advance directive instructing his or her doctor to withhold or withdraw some forms of medical treatment. It is unlikely that a simple request that a named individual should be consulted before any treatment decision is made, would be ignored, but a proxy directive, in which the person nominates someone to make treatment decisions on his behalf is not currently enforceable.

What is a living will/advance directive?

An advance directive is a written statement, made by an informed and competent adult, indicating an intention to refuse specific medical treatment which might otherwise be given and the circumstances in which such refusal is to apply. The statement only comes into effect once the person making it becomes incapable of making an informed decision.

An advance directive can only be made in respect of a refusal of medical treatment and doctors cannot be forced to provide any particular form of medical treatment.

When should an advance directive be considered?

Some people may decide to make an advance directive when they are diagnosed with a life threatening illness or dementia. Whilst they are able, such individuals may wish to prepare an advance directive and to discuss with doctors the treatment options available. Similar discussions can take place with any individual(s) whom the person making the advance directive wants to be consulted about what is to happen when mental capacity is lost.

Other individuals may wish to make an advance directive whilst they are healthy.

What is needed to make an advance directive legally effective?

At present the common law recognizes a refusal directive and doctors are required to follow the wishes of a patient provided that person was :-

aged 18 or over at the time the document was prepared and signed;
mentally capable at the time the advance directive was prepared and signed;
not subjected to undue influence by anybody else at the time the directive was prepared and signed;
in full possession of all relevant facts about the treatment options available and the implications of refusal when the directive was prepared and signed;

In addition the advance directive must :-

not have been changed verbally or in writing since it was prepared and signed;
be clearly established
applicable in the circumstances
not request any unlawful intervention or omission
not request treatment which the medical team considers inappropriate

The maker must have contemplated the situation that eventually arose

Should an advance directive be reviewed?

It is sensible to regularly review any advance directive. Medical science is ever improving and new treatment procedures regularly become available. Treating doctors will need to be satisfied that the patient who made the advance directive was aware of any improved treatment options that may have become available since the directive was signed. Evidence of reviews of the directive should therefore be kept and made available to treating doctors and to anybody else who has been provided with a copy of the original directive.

Who should keep a copy of the advance directive?

It is important to ensure that a copy of the advance directive is kept by your G P with your medical records and, in particular, that any treating doctors are made aware of its contents. Any person who has been appointed to discuss treatment with doctors should be provided with a copy and kept informed of reviews undertaken. You may wish to keep a copy with any other important papers that you retain and with papers which are held, for example, with solicitors and banks. If you keep a bag packed ready for hospital admission, you may wish to keep a copy there.

Changes in the law

We can assist with the preparation of an advance directive effective under the present law, and advise on the changes from April 2007 when the Mental Capacity Act 2005 will come into effect. They will provide statutory provisions for advance directives, and they are described in the Act as “advance decisions to refuse treatment”.