Living Wills or Advance Decisions
An Advance Decision, previously known as a Living Will, is a legally binding document which you sign and which instructs your doctor on what type of medical treatment you would or would not want to receive if you become unable to make decisions or to communicate your wishes.
In most instances when you are ill, you are able to discuss treatment options with your doctor and jointly reach a decision about your treatment. A mentally competent adult cannot be given medical treatment without his or her valid consent.
However, an occasion may arise in the future when you are admitted to hospital when unconscious or unable, on a temporary or permanent basis, to communicate your wishes concerning your treatment. A time may come when you are not able to process information and understand the implications of treatment being proposed.
Should any of these situations arise, doctors have a ethical and legal obligation to act in your best interests. BMA (British Medical Association) guidance states that it is good practice for relatives to be consulted when determining the patient's best interests. They do not, however, have a legal right to be consulted or to make decisions on your behalf. Under these circumstances, it would assist your doctor if he/she were able to access information that reflects your views and wishes. This could be in the form of an Advance Decision or Living Will.
Who can make an Advance Decision
Most people who may be thinking of writing an Advance Decision are usually older persons or who are seriously ill. But it may be just as important for people of all ages and who are in good health to consider making one.
The Mental Capacity Act 2005 sets out the statutory rules governing Advance Decisions to refuse treatment. The government issued the Mental Capacity Act Code of Practice in April 2007, which includes guidance on Advance Decisions, and a range of information booklets for the public and professionals, which summarise the provisions that relate to Advance Decisions. The Department of Health has issued information on the transitional provisions for Advance Decisions to refuse life-sustaining treatment made before the Act came into force. The Code of Practice and other information will be updated as necessary.
Advance Decisions must be upheld if they fulfil the following criteria.
- You must be 18 years of age or over.
- You must be mentally competent at the time of writing it.
- You must not be suffering from any form of mental distress at the time.
- You must not have been coerced, harassed or threatened by anyone at the time of writing the document.
- You must have been made fully aware of all and any treatment options available and their implications at the time of writing the document.
- That no modifications either verbally or in writing have been made since the document was signed and dated.
- The document must be signed and dated by at least one witness over 18 years of age.
It is advisable that the witness/es is/are not your spouse, partner, relative or anyone who stands to benefit from your ordinary Will or directly from your estate following your death. However, it would advisable to make members of your family and friends aware of the document's existence.
It is also advisable to discuss your intentions fully with a medical professional and your family and friends. A doctor involved in your care can help you understand the implications of refusing treatment, or for opting for a particular type of treatment and give advice as to the likely course of your illness. This doctor can also help you express your wishes clearly and verify you were competent at the time you prepared and signed the document. If this doctor or your GP acts as witness to the document, it will show they fully understand your wishes.
What cannot be included
The document cannot be used to request any form of treatment or actions which are illegal. For example, it cannot be used to:
- request euthanasia or assistance to commit suicide
- refuse treatment administered solely for the purpose of pain relief
- give advance direction to insist on specific treatment; they may only authorise or refuse treatment
- refuse food or drink
- refuse basic nursing care such as cleansing, washing, etc.
- Demand anything that the doctor or the carers consider to be inappropriate
Updating and reviewing the document
It is important that the document is kept up to date and still confirms your wishes. This is necessary because of new or improved medical treatments becoming available. Your doctor may check its validity, particularly if it was signed a long time ago. You may have simply have changed your views. Therefore, it is advisable that you undertake a regular review and reaffirm your wishes.
When you have carried out a review, you should also make sure that all who have a copy are informed of amendments.
An up-to-date document should be kept with your medical records at your general practitioner's surgery, and if appropriate with your hospital records. It is advisable to make members of your family and friends aware of the document's existence.
Useful contacts and further information can be obtained from the following sources:
- Age Concern
- Patients Association