Advance Medical Directives (Living Wills)
Medical science has advanced to such an extent that it is possible to keep a seriously ill person alive even where there is little or no realistic prospect of recovery to a state where they will be able to enjoy life of a reasonable quality. This can cause serious and prolonged physical, emotional and mental distress not only to oneself but also to ones’ family.
Understandably, many of us simply do not want this to happen, and therefore wish to make our wishes known in advance to our GP and family. By signing an ‘Advance Medical Directive’ (‘AMD’; also known as a ‘Living Will’) we can make our wishes clear at a time when we are mentally and physically capable of doing so.
Such a document can define not only the types of treatment we do not consent to receive but also procedures that we do wish to receive. It would be usual to appoint a representative (‘Proxy’) to accept or reject treatment on your behalf, preferably a family member who knows of your wishes.
AMDs are merely an expression of your wishes. However both the Law Society and the British Medical Association have acknowledged that wherever possible a patient’s wishes recorded in an Advance Directive ought to be taken into account in deciding on a patient’s best interests. (see the BMA Statement on Advance Directives 1992, BMA Guidance on With-holding and Withdrawing Life-Prolonging Medical Treatment and Department of Health – Guide to Consent).
It is clear under the general law that competent informed adults have a right to refuse medical treatment in advance and that an unambiguous and informed AMD can be as valid as a contemporaneous decision. A contemporaneous decision by a competent individual overrides previously expressed statements by that person. Healthcare professionals may be legally liable if they disregard the terms of an AMD if the directive is known to them and it is clear, unambiguous and applicable in the circumstances. However if a patient lacks mental capacity, then in the absence of a WPA or an AMD, there is a presumption that he has consented to the treatment that the doctors deem to be in his ‘best interests’.
Under the Adults with Incapacity (Scotland) Act 2000 there is statutory support for the ability to make a Welfare Power of Attorney (‘WPA’), which is similar – but not identical – to an AMD. A WPA enables the attorney to make decisions regarding day to day health and welfare, residential care, and whether to accept or refuse medical treatment, in the event of mental incapacity. However an AMD is a document by which someone indicates that they do not want to receive life-prolonging medical treatment in the future.
Nevertheless, it is important to understand that an AMD does not permit euthanasia (which involves taking active steps to shorten a life) or other unlawful procedures but is merely a refusal to accept the taking of active steps by our medical advisors to prolong our life in certain circumstances. Nor do they permit either the refusal of ‘basic care’ (eg the administration of medication or any procedure primarily designed to provide comfort to a patient or to alleviate their pain or distress), or to insist upon futile or inappropriate treatment.
Although an AMD is likely to be given serious consideration by your medical advisors when treating you, medical science is advancing rapidly and it is essential that you discuss any proposed AMD with your GP before signing it, and that a copy is left with your medical records.
We can advise you on AMDs in the light of your personal circumstances.
This Briefing has been produced for information purposes only and is based on the law and other information available at the time of writing. We cannot be held responsible for any losses incurred through acting or failing to act on the basis of anything contained in this Briefing.
If you require advice on any of the matters referred to, please contact us so that we can advise you, taking account of your own particular circumstances and requirements.
