When you are ill, you can usually discuss treatment options with your doctor and then jointly reach a decision about your future care. However, you may be admitted to hospital when unconscious or unable, on a temporary or permanent basis, to make your own decisions about your treatment or communicate your wishes. This may happen, for example, if you have a car accident, a stroke or develop dementia. To use the legal term – you would ‘lack mental capacity’ to make an informed decision and/or communicate your wishes. In such situations, doctors have a legal and ethical obligation to act in your best interests. One exception to this is if you have made an advance decision refusing treatment. If this decision is valid and applicable to the circumstances, medical professionals providing your care are bound to follow it – whether or not they think it is in your best interests.
The term ‘living will’ doesn’t have a legal meaning but can be used to refer to either an advance decision or an advance statement. An advance decision is a decision to refuse treatment; an advance statement is any other decision about how you would like to be treated.
Only an advance decision is legally binding, but an advance statement should be taken into account when deciding what is in your best interests.
What is an advance statement?
This is a general statement of your wishes and views. It allows you to state your preferences and indicate what treatment or care you would like to receive should you, in the future, be unable to decide or communicate your wishes for yourself. It can include non-medical things such as your food preferences or whether you would prefer a bath to a shower. It could reflect your religious or other beliefs and any aspects of life that you particularly value. It can help those involved in your care to know more about what is important to you. It must be considered by the people providing your treatment, when they determine what is in your best interests, but they are not legally bound to follow your wishes.
Advance statements can also be used to let the people treating you know who you would like to be consulted when a decision has to be made, if you are unable to make that decision yourself. If you create a Lasting Power of Attorney (LPA), you could record an advance statement in the LPA document. An LPA can be used if you want to give someone else, or more than one person, the power to make decisions about your care and treatment if you are not able to do so yourself. Your attorney(s) must take your advance statement into account when deciding what is in your best interests. ( see Power of Attorney section)
What is an advance decision to refuse treatment?
An advance decision to refuse treatment is the only type of living will that is legally binding. An adult with mental capacity can refuse treatment for any reason, even if this might lead to their death. However, no one is able to insist that a particular medical treatment is given, if it conflicts with what the medical professionals providing the treatment conclude is in the patient’s best interests. This is why an advance decision can only be a refusal of treatment.
An advance decision to refuse treatment must indicate exactly what type of treatment you wish to refuse and should give as much detail as necessary about the circumstances under which this refusal would apply. It is not necessary to use precise medical terms, as long as it is clear what treatment is to be refused in what circumstances.
An advance decision can only be made by someone over the age of 18 who has the mental capacity to make the decision. This means they must be able to understand, weigh up and retain the relevant information to make the
decision to refuse treatment; and they must then be able to communicate that decision.
How to make an advance decision to refuse treatment
An advance decision does not have to be in writing, unless it is a decision to refuse life-sustaining treatment (see the next section below for the legal requirements for this type of decision). Verbal instructions can amount to a valid advance decision but there is more risk that a verbal refusal of treatment would not be carried out. The person providing treatment may not be aware of it, or there could be uncertainty about its validity or applicability. For example, a statement made by a patient during a discussion with their doctor that they would not wish to have a particular type of treatment in certain circumstances in the future can be a valid advance decision even if it is not put in writing. It would be best practice for the doctor to record the statement in the patient’s medical records, but it can still be valid if this is not done. Even if you are putting your advance decision in writing yourself, it is a good idea to discuss it with your doctor. To avoid uncertainty over the validity of an advance decision you should put it in writing, or ask someone else to write it down for you if possible.
The following guidelines could be helpful:
- Put the decision in writing.
- Include your name, date of birth, address and details of of your GP.
- Include a statement that you wish the advance decision to apply if you lack the capacity to make the decision yourself at the relevant time.
- Specify what kind of treatment is to be refused and in what circumstances, giving as much detail as possible.
- Sign and date the document.
- Ask someone to witness your signature.
You could ask your doctor or another relevant professional to sign a statement on the document stating that they have carried out an assessment of you and, in their opinion; you have the mental capacity to make the decision. Remember that the above points are not legal requirements, but they can help to avoid uncertainty over the validity and applicability of your advance decision.
There are legal requirements if you are making an advance decision to refuse life-sustaining treatment. See below for details of these.
How to make an advance decision to refuse life-sustaining treatment.
If you want to make an advance decision to refuse life-sustaining treatment, it must meet certain requirements set out in the Mental Capacity Act. Lifesustaining treatment is defined in the Act as treatment that, in the view of the person providing health care to the person concerned, is necessary to sustain their life. This could include artificial nutrition and hydration to someone who cannot eat or drink by mouth.
The legal requirements for a valid advance decision to refuse life-sustaining treatment are as follows:
- The decision must be in writing. You can ask someone else to write it down if you can’t do it yourself.
- You must sign the document. You can instruct someone to sign it on your behalf in your presence if you can’t sign it yourself.
- Your signature (or the signature of the person signing on your behalf) must be witnessed. The witness must also sign the document in your presence.
- You must include a written statement that the advance decision is to apply to the specific treatment even if your life is at risk.
At Paul Darnborough Solicitors, we will engage with you to make considered choices about what treatment you may wish not to receive in situations where you anticipate that you may have lost the power to make your own decisions.
We will facilitate a compassionate and inclusive dialogue that leads to a resolution of your deeper concerns. Reflecting on my father’s decent into dementia, my family regret the fact that Dad failed to make a living will.