Living Wills - A Further Instalment

In Issue 2 of ECA (January/February), Michele Todd set out the story so far concerning Living Wills (or advance directives as they are also known). Now Julia Abrey a Partner at Withers, provides a further update on this increasingly common and important area.

At the time of Michele Todd's article the Law Commission's Report No 231 on Mental Incapacity, the result of an extensive and detailed five year study by the Commission into the subject, had been published for nine months during which period it had been the subject of much debate in both the medical and legal worlds. The issue of the Report followed references to advance directives in previous Law Commission reports (principally Report No 129 in 1993), the Report of the House of Lords Select Committee on Medical Ethics published in January 1994 and the Government's response to the Select Committee's report published later in the same year. Both the Select Committee and the Government rejected the proposal for further legislation on the subject of advance directives, preferring the formulation of a code of practice intended to be used by all those involved. A voluntary code was prepared by the BMA and published in 'Advance Statements about Medical Treatment' in April 1995.

By way of reminder, Report No 231 (which covered many issues relating to mental incapacity) did contain a draft Mental Incapacity Bill in contrast to previous Law Commission reports which had not put forward draft legislation. The principal features of Report 231 in relation to advance directives were:

Advance Refusals

Definition
An advance refusal of treatment was defined as a refusal made by a person aged 18 or over - with the necessary capacity - of any medical, surgical or dental treatment or other procedure intended to have effect at any subsequent time when the person might be without capacity to give or refuse consent.
Liability
No person should incur liability
(a) for the consequences of withholding any treatment or procedure if he or she had reasonable grounds for believing that an advance refusal of treatment applied; or
(b) for carrying out any treatment or procedure to which an advance refusal applied unless he or she knew or had reasonable grounds to believe that an advance refusal applied.
Endangering life
Unless indicated to the contrary it was to be presumed that an advance refusal did not apply in circumstances where those having care of the person who made it considered that the refusal endangered that person's life (or if that person was a pregnant woman, the life of the foetus).
Basic care
An advance refusal should not preclude the provision of basic care which was defined as care to maintain bodily cleanliness and alleviate severe pain as well as the provision of direct oral nutrition and hydration.
Formalities
(a) an advance refusal would be presumed to be validly made if it was in writing, signed and witnessed; and
(b) an advance refusal could at any time be drawn up or altered by the person who made it if he or she had capacity to do so and it should be an offence punishable with a maximum of two years imprisonment to conceal or destroy a written refusal directive with intent to deceive.

Continuing Power of Attorney ('CPA')

A proposed new form of Enduring Power of Attorney to operate alongside present enduring powers. As with enduring powers, an attorney acting under a CPA on a donor's behalf could continue to do so once the donor had lost their capacity. A CPA would, however, cover matters relating to the donor's personal welfare and health care as well as financial decisions. Further details of the scope of the CPA can be found in Michele Todd's article.

On 16 January 1996 the Lord Chancellor's Department issued a Press Release stating that the Government did not intend to introduce legislation to enact the Law Commission's draft Mental Incapacity Bill. The Lord Chancellor presented the Government's view in a written answer to a Parliamentary question by Lord Denham. The Lord Chancellor said;

'The Government has considered the Law Commission report on mental incapacity very carefully and is grateful to the many individuals and organisations who have sent in their views on this subject. The Government appreciates that this is an important and sensitive subject raising moral and ethical issues on which people will have strong personal views.

The Government has decided not to legislate on the basis of the Law Commission's proposals in their current form and has also concluded that it would be inappropriate to make any proposals to Parliament in the absence of full public consultation. The Government proposes to issue a consultation paper on mental incapacity in due course.

The Government wishes to emphasise that it fully supports the views of the House of Lords Select Committee on Medical Ethics that euthanasia is unacceptable and has no plans to change this policy. The Government's consultation would thus not include any proposals on this subject.'

The Lord Chancellor's statement is an interesting one as it singles out the issue of euthanasia. The juxtaposition of the statement concerning euthanasia with the statement that the Government does not intend to proceed with the passing of the Mental Incapacity Bill is of particular concern as the issue of euthanasia was not actually referred to in the Law Commission's Report 231. The issue of advance directives (which was discussed by the Law Commission) is not referred to in the Lord Chancellor's statement, however considering the publication of the BMA's Code of Practice and the increasing popularity of advance directives it is disappointing that this very live issue which has already been the subject of considerable discussion is not to be progressed further by the promotion of the Mental Incapacity Bill.

On 19 January, following the Lord Chancellor's statement three days before, the BMA and the Law Society jointly published their report entitled 'Assessment of Mental Capacity - Guidance for Doctors and Lawyers', which outlined the current legal requirements concerning the assessment of mental capacity and included practical guidance for members of both professions. The report (produced by a working party comprising both legal and medical members) discusses the definition and assessment of capacity in many scenarios; for example making a will, granting an enduring power of attorney, making a gift and entering into a contract. The capacity to make anticipatory decisions is also covered; the report stating that an adult capable of making a current medical decision could, if properly informed of the implications and consequences, also make anticipatory decisions about their preferences and medical treatment at a later date.

The section of the report covering the required capacity to make this kind of anticipatory decision drew a distinction between the capacity to make advance statements generally and the capacity to make an anticipatory refusal. In the former case, the view of the working party was that the test for capacity would be similar to that for capacity to make contemporaneous medical decisions. The report states that;

'the treatment options, alternatives and implications of them should be broadly understood'

The report also makes the point that patients should be aware that their consent to certain treatment does not compel a doctor to carry it out if it is contrary to their clinical judgment and also refers to the BMA Code of Practice to which readers are directed for further information.

In the case of anticipatory refusals, the report (as does the Code of Practice) approves the conditions for a valid refusal laid down by the Court of Appeal in Re T (Adult: Refusal of Treatment) (1992) 4 All ER 649. The conditions were as follows:

the patient must have been competent when the refusal was made; and
must have contemplated the situation that actually arose later; and
must have appreciated the consequences of refusing treatment; and
must not have been unduly influenced to make the refusal by anyone else.

The BMA and Law Society's report whilst approving the Re T conditions does mention the restriction recommended by the BMA Code of Practice that (as a matter of public policy) advance statements refusing basic care and maintenance of comfort should not be binding on health professionals. The report does not, however, go on to consider the test for capacity to make a valid advance refusal set out in the decision in Re C (Adult: Refusal of Treatment) (1994) 1 WLR 290 in which it was held that a person would have capacity to make a valid anticipatory refusal if they could understand and retain the information relevant to the decision in question, could believe and weigh it before arriving at a choice. The Re C test of capacity to make a valid refusal directive was specifically approved in the BMA Code of Practice.

The issue of living wills therefore continues to be a topic which attracts substantial debate and discussion. Following the Government's announcement on 16 January, however, it is to be hoped that the interest in and progress towards reform of this complex area of the law will not be subject to delay. The Government's call in their press release for further consultation is certain to engender more discussion with the many legal and medical parties deeply interested in these issues.

Julia Abrey, Partner, Withers