January 2012 – ‘Living Wills’ or ‘Advance Directives’

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The term ‘living will’ generally means a formal written statement by a person setting out what medical treatments they do not want if, in the future, they lose capacity to communicate their wishes because of e.g. mental incapacity, a stroke, a coma, or unconsciousness. They are usually associated with ‘end-of-life’ treatments which prolong life in cases where any real quality of life is absent. This is not a cheery topic. But January is not a cheery month. So it has some topicality in that – and the subject is, in any event, one of increasing importance.

A ‘living will’ although a common enough term is perhaps a little misleading in that it implies – by use of the term ‘will’ – that it has effect on death. Whereas, of course, the whole point of a ‘living will’ is that it should have effect before death. Its point is to direct in advance what treatments a person does not want in the event that they’re unable to communicate that themselves at the relevant time. So, in this Note, such documents are called ‘advance directives’ which is the more legalistic and accurate term.

A bit more about what an ‘advance directive’ is

  • If you have capacity and can communicate you may refuse medical treatment. But if you are unable to communicate a refusal then it follows that you will be unable to refuse.
  • Some people wish to anticipate the possibility of their being unable to communicate – and so unable to refuse treatment – by setting out in advance what kinds of medical or surgical treatments or interventions they do not want in particular circumstances.
  • But an advance directive cannot be used to:
    • request particular treatments;
    • to ask for your life to be ended;
    • to force doctors to act against their professional judgement; or
    • to nominate someone else to decide about treatment on your behalf.
  • It can only be used to detail what treatment is to be withheld.
  • It is worth noting here that relatives do not have any automatic legal right to make treatment decisions on behalf of adults who cannot communicate such decisions for themselves.

Is an ‘advance directive’ legally binding?

  • The Scottish Government rejected the Scottish Law Commission’s recommendation that ‘advance directives’ should have statutory force (i.e. in terms of legislation) in a Green Paper in 1999 saying:
    • ‘…we have examined carefully…legislation to give clear legal force to Advance statements (‘Living Wills’)…although such proposals have the sincere support of particular interest groups, we do not consider they command general support…’
  • There is however now provision for ‘advance directives’ under English legislation (in the Mental Capacity Act 2005) but no such corresponding provision in Scotland.
  • But the general view is that even although ‘advance directives’ are not provided for in Scottish legislation as yet they would nevertheless be legally binding in Scotland at common law (i.e. under judge-made law). But there is no judicial decision in Scotland affirming that as yet.
  • Nevertheless, even although there may be a lingering doubt as to whether advance directives are legally binding, the position is that under the Adults with Incapacity (Scotland) Act 2000 any medical treatment administered to an adult with incapacity must take into account his or her ‘past wishes and feelings’. That would of course include an advance directive.

Welfare Powers of Attorney

  • It was noted above that an advance directive cannot nominate someone to decide about treatment on your behalf.
  • But you may grant what is called a ‘welfare power of attorney’ appointing someone to decide on welfare matters generally in the event of incapacity. The powers conferred on such an attorney may include the power to consent – and to withhold consent – to medical treatment.
  • A welfare attorney could not over-ride a medical practitioner in the event of disagreement between them about the withholding of medical treatment but in such a case the medical practitioner would have to request the Mental Welfare Commission to intervene.

Mental Health (Care and Treatment) (Scotland) Act 2003 (‘the 2003 Act’)

  • Although, as noted above, there is no provision in Scottish legislation for advance directives in relation to physical conditions there is Scottish legislation which provides for something akin to an ‘advance directive’ in relation to medical treatment for mental disorders.
  • Terminology again: statements under the 2003 Act are referred to as ‘advance statements’ (not ‘directives’).
  • The 2003 Act provides that a person may specify in an ‘advance statement’ the ways in which they do wish, and the ways in which they do not wish, to be treated for mental disorder.
  • If they then become mentally disordered so that they cannot make such decisions themselves the 2003 Act provides that any person giving treatment for mental disorder ‘shall have regard to the wishes specified in the advance statement’.
  • The Act does not make such ‘advance statements’ legally binding in all circumstances. Instead the Act provides that if a competent patient makes a statement in advance about the types of treatment they wish to have in the future, tribunals and mental health professionals must ‘have regard’ to this.
  • If a patient is given treatment, or if a tribunal makes an order, which conflicts with the terms of an advance statement, the doctor or tribunal must notify the Mental Welfare Commission. The Commission can stop treatments in certain circumstances.

General Note

Making an ‘advance directive’ or an ‘advance statement’ is a serious matter. The person needs to be sure that the full implications are properly understood. The content of any such statement should be carefully considered along with relative guidance from the BMA. Ideally matters should be fully discussed with a doctor.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Neil MacKenzienjm@mitchells-roberton.co.uk

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