Feature

posted 2 Jun 2003 in Volume 8 Issue 4

A guide to living wills

The possibility that patients may become mentally or physically incapable of communicating decisions about their own medical care to their doctors has led to the development of advance directives, also known as living wills. Susan Pape, an associate at Cumberland Ellis Peirs, examines the history of advance directives and the role for solicitors advising their clients in this sensitive area.

Living wills are not to be confused with conventional wills, they do not deal with your assets and the distribution of your estate after your death, they are concerned with your physical and mental welfare while you are living.

A signatory to a living will states in advance what treatment he or she wishes to receive, or alternatively, have withheld, in circumstances where there is no prospect of their recovery. An advance directive/living will precedent is shown at the end of this article.

The history

Living wills were brought to the attention of the public in this country mainly by the Terence Higgins Trust, which had been providing specialist and legal advice to sufferers from AIDS or those who were HIV positive. At that time, a diagnosis that a patient had AIDS was almost a death sentence, and often led to a very unpleasant and undignified death. The Terence Higgins Trust produced a living will stating that in the event of sufferers becoming severely mentally or physically disabled, they could declare a desire not to be kept alive by medical treatment, and to elect to receive only such treatment as would keep them comfortable and free from pain.

Legal background

As early as 1914, the American Judge Lord Cardoza in the case of Schloendorff v Society of New York Hospitals (1914) said that: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”

In 1993, a young man, Tony Bland, was severely injured during a pitch invasion at the Hillsborough Football Ground. The doctors diagnosed his condition as a permanent vegetative state of which there was no prospect of recovery. His parents wished the hospital to switch off the machine that was keeping him alive. The case went to the House of Lords (Airedale NHS Trust v Bland (1993) 1 All ER 821) where Lord Goff adopted this principle of self-determination. If an adult patient of sound mind has made his wishes clear as regards the refusal to consent to medical treatment, the doctors must “give effect to his wishes”. It was a difficult decision to make, but their Lordships made it clear that the decision would have been easier if there had been an advance directive in place.

In Mallette v Sharman (Canada 1990), a doctor was charged with battery for refusing to act in accordance with the advance wishes of a Jehovah’s Witness by giving him a blood transfusion. In Re C (1994) 1 All ER 819, a patient refused to allow doctors to remove his gangrenous foot and, even though he was suffering from chronic paranoid schizophrenia, the court awarded an injunction to restrain the hospital from amputating his leg. Both of these cases underline Lord Goff’s view that the courts should recognise a person’s right to self-determine his future medical welfare.

In the case of Re AK (2001) 1 FLR 129, the courts stated that an advance directive was to be followed. The patient, aged 19, had motor neurone disease, had not been able to speak for two years, was tube fed, and his only means of communication was by a tiny movement of his eyelid. He requested that artificial ventilation, nutrition and hydration be stopped two weeks after he had lost total ability to communicate. The health authority applied to the High Court for a declaration, which was granted.

“In the case of an adult patient of full capacity, his refusal to consent to treatment or care, in law, must be observed.”

Content

Living wills can be made when a person is fit and well, with no expectation of a terminal illness. It can be made to cover such eventualities as a serious accident leaving them mentally and physically damaged, or a stroke leaving them paralysed. This anticipation of permanent mental impairment, permanent unconsciousness, or other physical illness where there is no likelihood of improvement, regaining consciousness or recovery respectively, are typical circumstances in which signatories may decide that a pre-recorded statement of their wishes regarding their future medical treatment would be desirable. In many cases, however, they are signed when the patient is confronted with a terminal illness, such as AIDS or terminal cancer.

Alternatively, living wills can be used to express the desire that a patient be kept alive for as long as possible in these circumstances.

Before signing a living will, signatories must show that they are capable of understanding what is happening to them, and what may happen, and what treatment they are likely to receive. It is advisable that your doctor is consulted to clarify your wishes; this will also make it easier for the doctor to understand the patient’s wishes, where the living will does not cover the exact medical condition experienced. It is wise to discuss this with your family and to ensure that, if a living will is made, they know where it is kept.

The use of living wills extends only in so far as the individual can choose not to have his life artificially prolonged by such means as heart resuscitation. A doctor cannot be asked to positively act to cause a person’s death. An application to court would normally be required in order to turn off a respirator, or other machine used to keep the patient alive.

It is also useful to nominate a trusted friend in your living will, someone with whom you have discussed your wishes, who can relay instructions to the doctor treating you, when you can no longer do so.

Assisted suicide

If a solicitor is asked to draft a living will for a client, he must be careful to avoid drafting one that will advocate a client’s desire to be killed. The danger is that the solicitor might be liable to conviction of up to 14 years for aiding and abetting death under section 2(1) of the Suicide Act 1961. The solicitor has to be careful not to advise, or draft the living will in any way, which will indicate an intention to assist in the death of the client. Providing the solicitor acts on the above instructions, the Crown Prosecution Service (CPS) has indicated that he or she will be safe from prosecution.

In a letter from the director of public prosecutions to the secretary of the mental health sub-committee in May 1990, the director said that the CPS has not stated a blanket principle, but has said that each case will be considered on its individual facts: “It is unlikely that a solicitor who is professionally instructed to draw up what can be described as a living will, which merely sets out an exhortation to any subsequent medical advisor as to what should occur given certain physical or mental incapacity, commits an offence under the Suicide Act 1961.”

As there is no case law or statute on the validity of living wills, it is useful to know that the CPS is unlikely to prosecute them. If individuals wish to dictate the medical treatment they will receive in certain circumstances, there seems no reason why he or she should be constrained in his assistance.

In its report on mental incapacity in 1995, the Law Commission stated that: “The authority should not authorise any treatment or procedure if an advance refusal of treatment by the person concerned applies to that treatment.” The proposals made by the Law Commission are unlikely to pass into statute in the foreseeable future, therefore living wills are likely to become more common.

ADVANCE DIRECTIVE

(LIVING WILL)

TO MY FAMILY, MY PHYSICIAN AND ALL OTHER PERSONS CONCERNED

THIS DIRECTIVE is made by me [full name and address]

at a time when I am of sound mind and after careful consideration.

I DECLARE that if at any time the following circumstances exist, namely:

I suffer from one or more of the conditions mentioned in the Schedule; and
I have become unable to participate effectively in decisions about my medical care; and
To independent physicians (one a consultant) are of the opinion that I am unlikely to recover from illness or impairment involving severe distress or incapacity for rational existence.

THEN AND IN THOSE CIRCUMSTANCES my directions are as follows:

That I am not to be subjected to any medical intervention or treatment aimed at prolonging or sustaining my life;
That any distressing symptoms (including any caused by lack of food or fluid) are to be fully controlled by appropriate analgesic or other treatment, even though that treatment may shorten my life.

I consent to anything proposed to be done or omitted in compliance with the directions expressed above and absolve my medical attendants from any civil liability arising out of such acts or omissions.

I wish it to be understood that I fear degeneration and indignity far more than I fear death. I ask my medical attendants to bear this statement in mind when considering what my intentions would be in any uncertain situation.

I wish the following person to be consulted about my medical treatment, if I am not able to give instructions myself:

Name

Address

Telephone number

I RESERVE the right to revoke the DIRECTIVE at any time, but unless I do so, it should be taken to represent my continuing directions.

SCHEDULE

A. Advanced disseminated malignant disease

B. Severe immune deficiency

C. Advanced degenerative disease of the nervous system

D. Severe and lasting brain damage due to injury, stroke, disease or other cause

E. Senile or pre-senile dementia, whether Alzheimer’s, multi-infarct or other

F. Any other condition of comparable gravity

SIGNED

DATED

WE TESTIFY that the above-named signed this Directive in our presence, and made it clear to us that he understood what it meant. We do not know of any pressure being brought on him to make such a directive and we believe it was made by his own wish. So far as we are aware, we do not stand to gain from his death.

WITNESSED BY:

Susan Pape is an associate at Cumberland Ellis Peirs. She can be contacted at: susanpape@cep-law.co.uk.