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Advance directives and living wills: what GPs need to know

Dr Janet Page of the Medical Protection Society looks at the practical aspects of advanced directives, or living wills

Dr Janet Page of the Medical Protection Society looks at the practical aspects of advanced directives, or living wills

It has long been an established legal principle that any adult of sound mind has a right to determine what will be done to his own body.

This was reinforced by Lord Keith in Bland when he said that an individual was "completely at liberty to decline to undergo treatment even if the result of his doing so will be that he will die".

There are currently two legal mechanisms by which individuals can make their wishes known in relation to treatment they will or will not accept in the event they becomes incapacitated and unable to make the decision for themselves when the occasion arises.

Advance directives or "living wills" as they are sometimes known, were embodied in statute when the full provisions of the Mental Capacity Act 2005 came into force in October 2007.

It applies to persons of 18 years and above only. The Act gives statutory effect to the principles and practices previously established under common law.

These include presumption of capacity unless otherwise established, achieving the purpose with the least restriction of the individual's rights and freedoms and that all decisions be made in the patient's best interests.

The Act also introduces a single statutory test of capacity based on earlier case law.

Prior to October 2007 there were no provisions in English law which allowed anyone to give consent to a medical procedure or treatment on behalf of an incapacitated adult.

The Mental Capacity Act introduced Lasting Powers of Attorney which permit an individual to appoint one or more persons to take decisions in relation to financial and/or health and welfare matters.

Similar arrangements were previously established in Scotland under the Adults with Incapacity (Scotland) Act 2000. Certain decisions can however never be made under the Act.

These include consenting to a marriage or civil partnership or its dissolution, sexual relations, adoption and giving consent under the Human Fertilisation and Embryology Act.

Advance directives and consent

As with any consenting process, there are three questions a doctor needs to consider when advising patients about advance directives:

• Is the patient competent to make the directive? Here the standard test of capacity should be applied, namely: does he understand the nature, purpose and effect of an advance directive, can he assimilate the information, consider it and arrive at a decision?

• Is the patient acting under his own free will?

• What information must I provide? See below

Practical points

One of the biggest problems for doctors faced with advance directives is their interpretation.

Patients should be advised to seek legal assistance in drafting advance directives to ensure their instructions are clear and unambiguous. In order for an advance directive to be put into effect the patient's treating physician must be confident that the patient anticipated the specific circumstances that subsequently prevailed and that the directive was intended to be applicable in those circumstances.

Broad general statements refusing treatment will not fulfil this requirement. Similarly, a narrowly drafted statement may not capture all the circumstances in which a patient would wish to refuse treatment.

Patients also need to be made aware of the alternative options open to them, for example appointing a personal welfare Lasting Power of Attorney.

It is also worth discussing with the patient how decisions will be made in the absence of any formal legal arrangements, responsibility resting with the doctor to act in the patient's best interests after appropriate discussion with relatives and carers.

For some people, the emotional burden of taking life-changing decisions on behalf of a loved one can be a heavy one and patients may welcome this being taken out of their own and their relatives' hands.

It would be helpful to explore with the patient the reasons for the advance directive.

If a particular illness has prompted the decision, this would be a good opportunity to find out if the patient has all the necessary information about prognosis and treatment options, and to explore any fears he or she may have about the future. Patients should also be aware of the limitations of advance decision-making.

Whilst doctors are obliged to respect advance refusals of treatment, they cannot be compelled to provide treatment which goes against their clinical judgment .

In general, advance expressions of wish do not have to be in writing to be valid, but any advance refusal of life-sustaining treatment must be in writing, signed and witnessed and verified by a statement to the effect that it is to apply to that treatment, even if life is at risk.

Patients cannot make an advance refusal of treatment for mental disorders which may be treated compulsorily under the Mental Health Act 1983.

Practical considerations also need to be discussed, for example when and how will the directive come into effect, how will it's existence be publicised and what arrangements will there be for regular review to ensure the directive still reflects the patient's wishes accurately with the passage of time and changing circumstances.

What to watch out for

Advance decisions can be revoked or amended at any time. With the exception of decisions relating to life-sustaining treatment, changes do not have to be in writing.

Where an advance directive and welfare Lasting Power of Attorney (LPA) contradict one another, the more recent decision prevails. No liability is incurred for the consequences of withholding or withdrawing treatment which the doctor reasonably believes at the time to be valid and applicable in the circumstances.

Similarly, there is nothing in an apparent advance decision to prevent a doctor from providing any immediately necessary treatment to prevent a serious deterioration in a patient's condition whilst seeking clarification about an advance directive, if necessary from the courts.

Finally, whilst there is a natural desire on the part of doctors to do all they can to support patients facing difficult decisions, a clear line must be drawn between withholding treatment and doing anything which might be construed as hastening a patient's death.

Dr Janet Page is a medico legal advisor at the MPS

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