What is a “Living Will?”
How Does it Fit with “Advance Decisions”, “Advance Statements” and “Personal Welfare LPAs”?
Living Wills (which were once also known, confusingly, as advance directives) are intended to allow individuals to specify the extent and nature of the medical treatment they would accept or reject should they lose capacity in the future. The term ‘living will’ can be confusing since these documents have no connection with ordinary wills.
A mentally capable adult has no right to demand a particular treatment, but has the right to refuse any medical treatment.
In a leading case in the early 1990s the Court of Appeal decided that a refusal of treatment made in advance is legally binding provided:
a) the person had full capacity at the time of making the decision;
b) a situation has arisen which was envisaged when the decision was made;
c) the person making it was not under any undue influence at the time the decision was made.
The position was reaffirmed by further test cases and the case law was effectively confirmed by the terms of the Mental Capacity Act 2005 (“MCA”), which treats such a document (now known as an “Advance Decision”) as fully binding. It is not easy to draft effective Advance Decisions, however. It is difficult to anticipate the circumstances that may arise and make the wording sufficiently specific. Any later decision or action inconsistent with the Advance Decision may invalidate it.
Even if a person has written a perfectly effective Advance Decision, there is the further problem that a doctor may give treatment, particularly in emergency situations, before becoming aware of its existence, so it is important that a copy or record of the document is kept with your medical records.
The MCA also introduced two further alternatives in this controversial area of the law.
First, it is an option to create a Health and Welfare Lasting Power of Attorney (“LPA”). This allows the donor to nominate a person to take a wide range of welfare decisions, not limited to purely medical ones, but which may include the power to refuse life sustaining treatment if the donor no longer has capacity to express their own wishes. Because no particular condition or set of circumstances needs to be specified, this is a more flexible approach, but obviously requires the donor to place a high degree of trust in their attorney, and the attorney has to bear a considerable responsibility. Attorneys must have regard to the “best interests” of a patient and a Code of Practice issued under the MCA, which may require them to consult with medical experts and the donor’s relatives before making a decision. In some cases, it may even be necessary to apply to the court for a declaration that a course of action is lawful, before taking the action. The donor may also, in their LPA, give non-binding guidance to their attorney as to how they should act.
An LPA made after a Living Will supersedes it. Similarly, a later Living Will can invalidate the medical treatment aspects of an LPA.
Secondly, the MCA allows a person to make an “Advance Statement” instead. This enables a person with capacity to set out their wishes and feelings about treatment they should receive and the way they should be treated if they should lose capacity in the future. These statements are not legally binding but decision makers – including attorneys under an LPA – are required to take them into account when deciding what is in the “best interests” of a patient.