Care Directions Updates

At the time, Prof Peter Millard, then President of the BGS, wrote to every MP warning against the dangers of advance directives which provide an established legal right by a competent, informed adult, to refuse medical procedures in advance.

In June, Care Directions (www.caredirections.co.uk) published an article on the current status of the “Living Will”. Aimed at the person contemplating having a living will drawn up, Maxine Trowbridge, Solicitor of Clifford Cowling in Fleet, Hampshire, wrote*: “The Living Will can deal with what medical treatment you wish to receive or not - should your health become so poor that you are in a persistent vegetative state. This covers such conditions as terminal physical illness, permanent mental disability, and permanent unconsciousness.

A person can appoint somebody else to help the doctor consider what their views would have been. Such a person is a proxy. However, one must consider very careful who should be the proxy.

Any person making a Living Will would be well advised to provide their doctor and, perhaps, their legal adviser with a copy of the document. The document should be executed and completed correctly to ensure it is of legal status. Recent case law has proved beyond doubt that when an informed and competent patient makes an advance decision to refuse specific treatments which would otherwise be given later, such refusal will be legally binding on doctors. Legislation will, in time, enforce the case law and draft legislation may actually become enacted.

Draft legislation
It is envisaged that the most common condition for which a Living Will would be appropriate would be where a person suffered from senile dementia - such as Alzheimer's disease at its most severe, coupled with serious physical illness. Another example may be where there are Living Wills drawn up by Jehovah's Witnesses declining blood in all circumstances.

The Law Commission's draft legislation now published is aimed at clarifying the position. It proposes that patients should not be able to refuse 'basic care' and hygiene through a Living Will - but they can legally refuse specific medical procedures. It has been made clear through the courts that patients can authorise or refuse treatments - but are unable to make legally-enforceable demands about specific treatments they wish to receive.

The British Medical Association makes it clear there is an important difference between intentionally killing and the withdrawal of treatment in a way that will ultimately result in the patient's death. Medical treatment can be legally and ethically withdrawn when it is unable to accomplish any improvement and it would not be in the patient’s best interest to continue treatment - or, alternatively when the patient has refused further treatment.

Artificial Nutrition
The Living Will is a subject of delicate current affairs debate. One will recall the case of Tony Bland - who, following the awful Hillsborough football stadium tragedy, was left in a persistent vegetative state. Tony had no awareness of the world and no possible hope of recovery. He was not terminally ill, but the withdrawal of artificial nutrition resulted in his life coming to an end. It was confirmed in this case that artificial nutrition does constitute a medical treatment, which in turn meant the Lords agreed that this could be withdrawn. In this case, Lord Browne-Wilkinson summed up the legal complexity saying:

‘How can it be lawful to allow a patient to die slowly, although painlessly over a period of weeks from lack of food, but unlawful to produce his immediate death by a lethal injection?’

He went on to say this was a difficult moral question to answer, but agreed it represented current law and that the legal boundaries must be maintained. Thus, the British Medical Association is of the opinion that, under certain strictly-defined circumstances, it is ethically acceptable to withdraw artificial nutrition and hydration from patients.

Also, the British Medical Association has made no distinction between euthanasia and physician-assisted suicide. In summary, specialist legal advice should be sought before considering the whole concept of Living Will construction and implementation.”

Kevin Kelleher
Editor

*(Ms Trowbridge’s article is intended as guidance for readers. The text can be no substitute for considered advice on specific problems. Consequently, the writer cannot accept responsibility for this information, errors, or matters affected by subsequent legislation.)