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‘THE LIVING WILL’by Maxine Trowbridge, Solicitor of Boyce Hatton in Torquay, Devon
At the outset of this article, it is important to state that a Living Will will ONLY become operational in the event that your medical condition prevents you from discussing any decisions that are likely to need to be made. A high profile case that may well spring to mind when thinking of the context of Living Wills, is that of the Winchester consultant who was convicted of attempted murder. This case actually re-stated the existing law: a Doctor cannot deliberately end, or be party to the ending of, the life of a patient. The British Medical Association supports the existing law. However, there are countries such as the Netherlands which have legalised euthanasia in some situations – subject, of course, to strict procedures being followed. The law in England and Wales clearly stipulates that euthanasia is a criminal offence. Suicide is no longer a criminal offence, but the person wanting to commit suicide is not entitled to engage the assistance of a third party in respect of the act of suicide. However, the law fully acknowledges the right of an individual to refuse life-sustaining treatment and only to receive drugs sufficient to relieve unacceptable levels of pain and distress. One must ensure that a Living Will document should not ask a Doctor to do anything contrary to existing law. However, should that Doctor be placed in a difficult position as to a person's medical treatment in extreme circumstances, a Living Will can be helpful – if that person’s wishes regarding such circumstances have been written down and considered at a time when there is not great pain or distress. Hopefully, recording preferences at such a time when you can appreciate all the points which need to be considered will mean your wishes are likely to be more rational. 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. Bear in mind that the person of your choice may be your loved one, who may find it far too emotional to have to deal with such matters personally. This may be especially the case when having to deal with all the issues of losing a partner. In appointing a proxy one should consider the potential trauma that may be felt by that person when passing on the appointor's views in the decision making process. 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. 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 patients best interest to continue treatment – or, alternatively when the patient has refused further treatment. The Living Will is a subject of such 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. The latter is where a doctor provides the medical treatment to end a life, but the patient actually carries out the deed of taking the treatment. In summary one will note from the above that specialist legal advice should be sought before considering the whole concept of Living Will construction and implementation. (The contents of this article are 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.)
By Nicholas Andrews of Furley Page Solicitors, Canterbury.I should like to comment on the article about Living Wills written by Maxine Trowbridge. I will summarise my observations as follows: 1. The words in bold at the commencement of her article suggest Living Wills apply when one is nearing the end of one's life. That may not of course always be the case. Anyone of any age may have a temporary loss of the ability to communicate. 2. Reference in paragraph 1 to “any decisions” might in the context of this article more helpfully have been stated as “treatment decisions”. 3. Linking Living Wills so closely with euthanasia is, I think, unhelpful. I know there is a temptation to do this but both should stand alone. Writing about both in the same article simply feeds misunderstanding and is, I believe, upsetting for many. 4. My understanding is that an individual can refuse not only life sustaining treatment but can also elect not to receive any treatment, drugs and so forth which might relieve pain. In other words, there is a paramount right for an individual to refuse all treatment even if that leads to their discomfort. Of course if the individual was subsequently proven to have lacked capacity that is another matter. 5. It may indeed be preferable for Living Wills to be written but oral directives have, do they not, just as much enforceability. 6. An individual making or expressing a Living Will must have capacity so that they can appreciate all points which need to be considered and since 1993 there has been a clearly defined fourfold test and a prominent precedent case. 7. whilst a Living Will deals with the kind of medical treatment (and probably nursing care as well) an individual is willing to accept, the right to demand to be treated is, I recollect, a matter which is either before, or will shortly come before, the European Court. Thus far, as Miss Trowbridge says, individuals have not been able to make legally enforceable demands about specific treatments they wish to receive. This may be about to change and we need to be conscious of the effect Human Rights legislation may have upon this precept. For the same reasons, the right to refuse “basic care” is, at least, questionable. 8. I would point our thatt proxy directives are not legal under English law. The position is different in Scotland following the Adults with Incapacity (Scotland) act 2000, although the proxy powers may be overruled. 9. there is of course no statutory framework for Living Wills and it would have been helpful to say Parliament has consistently said it does not intend to legislate. 10. lastly, whatever the British Medical Association (or any other body for that matter) thinks, decisions on ending life through the withholding of treatment can ultimately only be made by the court.
Living Wills: Further Observations By Nicholas Barnes, Docklands, London Dear
Sir, His point 8 states that proxy directives are not legal in England. I think this is an unhelpful turn of phrase, as it carries with it the implication of illegality. It would be more correct to say that it is not legally enforceable in England, at this point in time. With regard to his point 10. This needs to be stated in a more precise context and related to the article. The implication in his statement being that only courts can give and take life – which is, of course nonsense even in a legal context. Treatment being withheld may also be for sound medical reasons, but which may also carry the risk of death. For example, Chemotherapy treatment in cancer patients may also kill the patient, as much as the withholding of treatment may result in death. If treatment was to be carried out, which ultimately brings the end to a life this would constitute a risk/judgment killing. Whatever terms one wants to put around this, it has the same end result. Namely the death of the patient without the sanction of a court. A relevant question would be as follows. What would happen when a patient decides voluntarily and in full awareness not to take the risk of treatment (which may result in death) and then reaches a state where they are no longer able to make continued sound judgments? Is the point being made that doctors are obliged to act to provide treatment at this stage, even though this was against the express wishes of the patient earlier – even if it may then cause the death of a patient? And if a living will existed, what then? Editors Note: The comments of Nicholas Barnes are founded in experiences relating to several family bereavements. He is neither a solicitor or physician. Perhaps, other solicitors might care to expand upon the various points contained. |
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