Living Will

What Is A Living Will?

A living will is a written statement that sets out an individual’s preferences regarding medical treatment in situations where they may be unable to communicate or make decisions. It allows individuals to refuse specific treatments, even if that decision may result in their death. The primary purposes of a living will include:

• Ensuring Autonomy: Respecting the individual’s wishes and autonomy by providing clear instructions on their preferred medical treatments.
• Providing Clarity: Offering guidance to healthcare professionals and family members reduces uncertainty and potential conflicts during difficult times.
• Facilitating Communication: Encouraging discussions about end-of-life care and treatment preferences leads to better planning and understanding.

Legal Context and Framework

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) is the cornerstone of the UK’s legal framework governing living wills. It sets out the principles and legal mechanisms for assessing capacity, making decisions on behalf of individuals who lack capacity, and safeguarding their rights. The MCA is founded on five fundamental principles:

1. Presumption of Capacity: Every adult has the right to make their own decisions and must be assumed to have capacity unless proven otherwise.
2. Right to Make Unwise Decisions: Individuals have the right to make decisions that others may consider unwise, provided they have the capacity to do so.
3. Best Interests: Any decision made on behalf of someone who lacks capacity must be in their best interests.
4. Least Restrictive Option: Decisions should be made in a way that is the least restrictive of the individual’s rights and freedoms.
5. Support to Make Decisions: Individuals should be given all practicable help before anyone concludes that they cannot make their own decisions.

Human Rights Act 1998

The Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) into UK law. Article 8 of the ECHR guarantees the right to respect for private and family life and underpins the legal basis for living wills. This right includes the autonomy to make decisions about one’s own body and medical treatment.

Types of Decisions in a Living Will

• Refusal of Specific Treatments: Individuals can refuse specific treatments they do not want under certain circumstances, even if this refusal may result in their death.
• General Treatment Preferences: Individuals can express general preferences regarding the type of care they wish to receive. Although these are not legally binding, they can provide valuable guidance to healthcare professionals and loved ones.

Creating a Living Will

Legal Requirements

For a Living Will to be valid and enforceable, it must meet certain legal requirements:

• Capacity: The individual must have the mental capacity to make the advance decision when it is made.
• Specificity: The directive must clearly specify the treatments being refused and the circumstances in which the refusal would apply.
• Written and Signed: If the refusal of treatment includes life-sustaining treatment, the Advance Decision must be in writing, signed, and witnessed.
• Clarity: The document should be unambiguous to avoid misinterpretation by healthcare professionals.

Registration and Storage

While there is no formal requirement to register a Living Will, it is advisable to store it in a place where it can be easily accessed by relevant parties. Individuals should inform their GP, family members, and any relevant healthcare providers about the existence and location of the document. Some organisations offer registration services for Living Wills to ensure they are readily available when needed.

Practical Implications and Challenges

Implementation and Compliance

Implementing a living will involves several practical considerations to ensure that the individual’s wishes are respected:

• Communication: Clear communication with family members, healthcare providers, and legal advisors is essential to ensure that everyone understands the individual’s preferences and the legal standing of the living will.
• Review and Update: Individuals should regularly review and update their living will to reflect changes in their health status, treatment preferences, or personal circumstances.
• Healthcare Professional Awareness: Healthcare professionals must be aware of the existence of a living will and understand their legal obligations to comply with it, provided it is valid and applicable.

Challenges and Limitations

Despite their importance, living wills face several challenges and limitations:

• Awareness and Understanding: The general public and healthcare professionals often lack awareness and understanding of living wills, which can lead to underutilization and non-compliance.
• Interpretation Issues: Ambiguities in the wording of a living will can lead to difficulties in interpretation, potentially resulting in the provision of unwanted treatments or the withholding of desired ones.
• Changing Medical Circumstances: Advances in medical treatments and changes in an individual’s health status may render an existing living will outdated or inappropriate.

Best Practices for Creating a Living Will

To ensure that a Living Will is effective and respected, individuals should follow best practices in its creation and maintenance:

Seek Professional Advice

Consulting with legal professionals, healthcare providers, and financial advisors can provide valuable guidance and ensure that the Living Will is comprehensive, clear, and legally sound. Professionals can help address complex medical and legal considerations and tailor the document to the individual’s needs and circumstances.

Be Specific and Clear

Clarity and specificity are paramount in a Living Will. Individuals should precisely state the treatments they wish to refuse and the conditions under which these refusals apply. Avoiding vague language and providing detailed descriptions can minimise the risk of misinterpretation.

Communicate with Loved Ones

Discussing one’s wishes with family members and close friends is crucial. These conversations can help ensure that loved ones understand and support the individual’s preferences, reducing the likelihood of disputes and emotional distress during critical times.

Regularly Review and Update

Living wills should be reviewed and updated regularly to reflect changes in the individual’s health status, personal circumstances, or treatment preferences. Regular reviews can ensure that the document remains relevant and aligned with the individual’s current wishes.

Ensure Accessibility

A Living Will should be easily accessible to relevant parties. Informing the GP, family members, and healthcare providers about the document’s existence and location can ensure that it is readily available when needed. Consider keeping copies in multiple locations and providing digital copies if appropriate.

Case Studies and Real-World Applications

Respecting Autonomy

Mrs. Smith, an 85-year-old woman with a history of severe dementia, had created a Living Will several years ago in which she specified that she did not want any life-sustaining treatments if she were to develop a severe illness. When she was admitted to the hospital with advanced pneumonia, her Living Will was presented to the medical team. Respecting her wishes, the team provided comfort care without aggressive interventions, ensuring her autonomy and dignity were honored in her final days.

Clarifying Preferences

Mr. Jones, a 70-year-old man with multiple chronic conditions, created a living will outlining his treatment preferences. However, the document contained ambiguous language regarding his wishes for artificial nutrition and hydration. When he became critically ill, the healthcare team struggled to interpret his preferences. This case highlights the importance of clear, specific language in Living Wills to avoid uncertainty and ensure that an individual’s wishes are accurately followed.

Ethical and Legal Considerations

Ethical Principles

Living Wills raise several ethical considerations, including:

• Autonomy: Respecting an individual’s right to decide about their body and medical treatment.
• Beneficence: Acting in the patient’s best interests by providing care that aligns with their values and preferences.
• Non-Maleficence: Avoiding harm by refraining from providing treatments that the individual has explicitly refused.
• Justice: Ensuring fair and equitable treatment of individuals, respecting their legal rights and personal choices.

Legal Obligations

Healthcare professionals have legal obligations to respect valid and applicable Living Wills. The MCA provides the legal framework for enforcing these directives; non-compliance can result in legal consequences. However, there are circumstances where a Living Will may not be followed, such as when:

• The directive is not valid or applicable: If the living will does not meet legal requirements or is irrelevant to the current situation, it may not be enforceable.
• Emergency Situations: In some emergencies, immediate life-saving treatment may be provided if the existence of a living will is not known at the time.
• Medical Advances: New medical treatments or changes in the individual’s condition may necessitate a re-evaluation of the directives.

The Role of Healthcare Professionals and Legal Advisors

Healthcare Professionals

Healthcare professionals play a critical role in implementing and respecting Living Wills. They should:

• Promote Awareness: Educate patients about the importance and benefits of creating a Living Will.
• Facilitate Communication: Encourage open discussions regarding treatment preferences between patients, their families, and healthcare teams.
• Ensure Compliance: Verify the validity and applicability of Living Wills and ensure that they are followed in accordance with the law.

Legal Advisors

Legal advisors provide essential support in the creation and maintenance of Living Wills. They should:

• Offer Guidance: Provide clear, informed advice on the legal requirements and best practices for creating a Living Will.
• Draft Documents: Assist in drafting Living Wills that are clear, specific, and legally sound.
• Review and Update: Help clients review and update their Living Wills regularly to ensure ongoing relevance and compliance.

Conclusion

Living wills are a vital tool for ensuring that individuals’ medical treatment preferences are respected when they can no longer communicate their decisions. By providing a legal framework for expressing treatment refusals and preferences, living wills uphold the principles of autonomy, dignity, and informed consent. However, creating and implementing a living will involves carefully considering legal, ethical, and practical factors.

At DLS Solicitors, we are committed to providing expert guidance and support to our clients in creating comprehensive, clear, and enforceable living wills. By promoting awareness, facilitating communication, and ensuring legal compliance, we strive to empower individuals to make informed decisions about their future medical care. As the legal landscape continues to evolve, we remain dedicated to upholding the rights and wishes of our clients, ensuring their voices are heard and respected even in the most challenging circumstances.