Advance directives can place doctors at odds with their patient’s wishes but new legislation should help to clarify the issues, as Dr Gerard Panting explains
Living wills are statements made by patients while they are competent about how they wish to be treated should they become incompetent at some stage in the future.
The terms living wills, advance directives, advance refusals and advance decisions tend to be used interchangeably. Within the Mental Capacity Bill currently before Parliament, the preferred term is ‘advance decision’.
The relevant measures in the Bill, as far as doctors are concerned, will put advance decisions on a statutory footing and create a lasting power of attorney which allows treatment and other welfare decisions to be made on behalf of incompetent adults.
The Bill, which should reach the statute book this autumn, applies to England and Wales only. In Scotland, the Adults with Incapacity (Scotland) Act has been in force since 2000.
The notion of advance decisions is simply an extension of a competent adult’s right to consent to, or refuse, specific treatments. Advance decisions already have legal force through cases decided by the courts, for example the Bland case in which Lord Goff stated:
"It is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for the care must give effect to his wishes even though they do not consider it to be in his best interests to do so.”
Lord Goff then went on to say:
"Moreover, the same principle applies where the patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred.”
And that is one of the main problems with living wills. If you are presented with an incompetent patient you have never met before, how do you know that the advance decision was meant to apply to these precise circumstances, that the patient will not have changed his mind in the interim, and that at the time a decision was made it was informed and given freely? The Mental Capacity Bill does not change the principle but does aim to clarify these issues.
Advance decisions are defined in the Bill as decisions made by a competent person aged 18 or over so that if the patient subsequently becomes incompetent, a specific treatment in the specified circumstances cannot be carried out or continued.
There are circumstances in which the advance decision becomes invalid: if the patient has withdrawn it when competent to do so, or where subsequently a lasting power of attorney (which confers on some other person authority to consent or refuse treatment) is created.
The advance decision is also invalidated if, since it was made, the patient does anything that is clearly inconsistent with the advance decision.
An advance decision must be specific to be valid, although it can be written in lay terms. It applies only if the treatment contemplated is the treatment specified and the circumstances are as set out in the advance decision. Where there are reasonable grounds for believing that the patient did not anticipate the full circumstances and so might have come to a different decision, it is not applicable.
All these provisos will inevitably mean that there will be doubt as to whether the advance decision was ever valid, remains valid or is applicable to the treatment in question. In these circumstances, the courts may be asked to make declarations about the validity and applicability of the advance decision.
The good news for health professionals is that, pending the outcome of an application to the court, nothing in the apparent advance decision prohibits the doctor from providing life-sustaining treatment or doing anything else that is reasonably believed to be necessary to prevent serious deterioration in the patient’s health.
Lasting power of attorney
The Bill also creates a new lasting power of attorney. Appointed attorneys will be able to make financial, health or personal welfare decisions on behalf of the patient should he or she later become incapacitated. Attorneys will have full powers to refuse or consent to medical treatment within limits prescribed while the patient was competent.
So attorneys may be empowered to refuse life-saving treatment and, as set out above, a decision made by an attorney supersedes any advance decision made by the patient personally.
The Bill sets out a definition of incapacity: patients who, at the material time, were unable to make decisions for themselves in relation to a specific issue because of impairment or disturbance in the functioning of the mind or brain, whether temporary or permanent.
This is very similar to the current common law test, which basically defines competence as the ability to understand the information relevant to the decision, to retain that information and to weigh it in the balance to arrive at a decision and to communicate that by any means.