What is a living will or advance directive?
A living will has no connection to or relationship with a “real” will. It is simply a document drawn to specify what medical treatment you would like in specific circumstances before you die. It is important to distinguish between a ‘living will’ which usually, although not always, refers to your general medical preferences and is only valid at common law. (This means that it is not a legally enforceable document, although medical practitioners will consider it when treating you.) Conversely, an ‘advance health directive’ is now recognised under the Mental Capacity Act 2005 as a legally enforceable document, subject to some formalities which are set out below. Note however, that the terms are somewhat interchangeable. Therefore when you write the document, it is essential to include the necessary formalities such as having it signed and witnessed if you want it to be legally enforceable and not merely a consideration.
If you have specific thoughts on how you would like to be treated medically, a living will, or advance health directive allows you to voice those wishes now, so that if you lose capacity, the document will be read and considered by your practitioners.
An advance decision must be in writing, signed and witnessed, and if it applies to life-sustaining treatment there must be a statement that the decision stands even if life is at risk.
An advance health directive is only legally enforceable in terms of refusing medical treatment. Any expansion on this such as the type of medicine you prefer to be given will simply be a consideration and not legally enforceable.
Why make a living will?
The most common medical reason for making a living will is so that you can refuse life-prolonging medical treatment if you became seriously ill in the future and were incapable of making your own health care decisions. The document contains provision for details of your GP but it is not obligatory to discuss your Living Will in advance with him or her, although it may be helpful to do so.
Formalities
An advance health directive for refusal of treatment is binding if:
- The person making the directive was 18 or older when it was made, and had the necessary mental capacity
- It specifies, in lay terms if necessary, the specific treatment to be refused and the particular circumstances in which the refusal is to apply
- The person making the directive has not withdrawn the decision at a time when he or she had the capacity to do so
- The person making the directive has not appointed, after the directive was made, an attorney to make the specified decision
- The person making the directive has not done anything clearly inconsistent with the directive remaining a fixed decision
Although advance decisions can be oral or in writing, an advance refusal will only apply to life-sustaining treatment where it is in writing, is signed and witnessed, and contains a statement that it is to apply even where life is at risk. Advanced decisions cannot be used to refuse basic care, which includes warmth, shelter and hygiene measures to maintain body cleanliness. This also includes the offer of oral food and water, but not artificial nutrition and hydration.
In an emergency or where there is doubt about the existence or validity of an advance directive, doctors can provide treatment that is immediately necessary to stabilise or to prevent a deterioration in the patient until the existence or applicability of the advance directive can be established.
Where a patient is subject to compulsory treatment under mental health legislation, an advance refusal relating to treatment provided for the mental disorder for which compulsory powers have been invoked will not be binding, although the treating professional should take such a directive into account. This could include, for example, considering whether there are any other treatment options available that are less-restrictive. An agreed advance treatment plan for mental health conditions can be helpful and would represent a kind of advance statement, although it would not be binding.
It may also be useful for you to show the document to someone you trust so that they can state that they know you understood the effect of your proposals. Avoid discussing deeply with family members who may benefit from your death because a court might take the view that they had unreasonably influenced your decision.
Requesting life sustaining treatment
Alternatively you may want to have life sustaining treatment even if you have very little chance of recovery. Unlike a refusal of treatment, this type of request is not binding on your doctor. However if you want this option, by asking for it your doctor will know you want the chance to recover from your illness even if it is not very likely you will do so.
You will be able to tell your doctor what you want to happen to you even if you cannot communicate. You are in control.
What a statement might include
· treatment you would be happy to have, and in what circumstances
· treatment you would want, no matter how ill you are
· treatment you would prefer not to have, and in what circumstances
· someone you would like to be consulted about your treatment at the time a decision needs to be made
It can also include a specific refusal of treatment. Only this part is legally binding.
If writing an advance statement, bear in mind that new drugs or treatments may be introduced in the future. So you could, for example, state that you would prefer not to receive certain current treatments but would allow for new treatments.
Include your name, address, date and signature in the advance statement. It’s also advisable to say you understand what you’re doing and are capable of making such decisions. And you may want to get the statement signed by a witness who can say that you had capacity at the time.
Living wills and mental capacity
You can still make a living will if you’re diagnosed with a mental illness, as long as you can show that you understand the implications of what you’re doing. You need to be competent to make the decision in question, not necessarily to make other decisions.
It’s best to put your wishes in writing and explain:
· why you’ve made your decision about how you do/don’t want to be treated
· what you understand about the treatment you're agreeing to or refusing
· why you’re making these decisions now
Who needs to know about a living will?
It’s important that your living will is entered into your medical notes so that in an emergency it is found and acted upon. Consider sending a copy to your doctor and to any hospital which is treating you and to your nearest relative/s. If your living will is verbal, make sure close relatives or friends are aware.
