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What is a Living Will?

A Living Will is a document in which a person, whilst still mentally competent, requests and directs that certain measures should be adopted if and when he becomes incapable of taking responsibility for his own healthcare, ie by consenting to or refusing treatment. It is also often referred to as an advance directive.

What are the main types of Living Will?

• An instruction directive which can either be a request for treatment or a refusal of treatment.
• A proxy directive in which a person appoints someone to make a healthcare decision for them as and when they are incapable of deciding for themselves.
• A statement of general belief on various aspects of life and individual values. This type of living will does not contain a direction but attempts to give a biographical portrait of the individual as an aid to deciding what he or she would want.

Are all the different types of Living Will legally valid in England and Wales?

No. It is clear from current case law that an instruction directive containing a refusal of treatment made in advance by a competent person is valid and should be respected by hospitals and other healthcare institutions.  A patient does not have the same right to request treatment; decisions about the most appropriate treatment will be made by the senior doctor based on what would be in the patient's best interests. A proxy directive is not valid; it cannot operate as an ordinary power of attorney because it would cease to have effect when the donor lost mental capacity and cannot operate as an enduring power of attorney (which does not become invalid when the patient becomes mentally incapacitated) as case law specifically states that an EPA cannot authorise an attorney to take decisions in relation to a donor's healthcare.  

When is a refusal directive valid?

When it is made by an adult who was mentally competent at the time when the directive was made and who also satisfies various other conditions relating principally to their having a clear understanding of the situation in which they anticipate that their directive will operate.   

Are there any restrictions on the terms of a valid refusal directive?

It seems that an otherwise valid refusal directive cannot include a provision which seeks to refuse basic care. Basic care includes warmth, shelter, pain relief, management of distressing symptoms, hygiene, feeding and hydration.

Are there any formalities to be observed in making a directive?

None are specified in law.  However, it seems sensible for the directive to be in writing, signed by the donor and witnessed.  If the donor has discussed the directive with their doctor before making it, it would be appropriate to include a statement to this effect in the directive itself.

What should I do with my directive once I have made it?

Those who need to know of the directive's existence and terms should be given a copy.  It would be sensible for one to be given to the donor's general practitioner, close members of their family and any specialist involved in their treatment.

Will my doctor respect my directive?

The British Medical Association published a Code of Practice in April 1995 commending the development of Living Wills as documents which encourage doctors and patients to have more open discussions relating to a patient's healthcare.  The Code of Practice stated that valid refusal directives must be followed by hospitals and that healthcare professionals who disregarded the terms of a valid refusal directive might be legally liable unless the refusal was of basic care.   It was therefore recommended that healthcare professionals acted with increased care and attention in a situation where a directive was likely to exist.  The Code of Practice is, however, voluntary and has not to date been widely adopted.

What if I want to change my directive later?

There are no set legal provisions for revoking a directive and therefore withdrawing the original and all copies and substituting a new directive is probably all that needs to be done. 

Will the Mental Capacity Act 2005 change anything about Living Wills?

Yes. The Act provides for the making of "advance decisions".  These are very like advance directives to refuse medical treatment and broadly work in the same way with similar limitations.  It is, however, now possible to appoint an attorney to make certain kinds of healthcare decisions for you.  There are limitations on this however and advice should be taken on the terms of an advance decision.

Is the MCA in force now?

No. It will not apply until April 2007.  You should, however, review any existing advance directive in good time before the Act comes into force in case changes are needed.