Living Wills

Medical science has advanced to such an extent that it is possible to keep a seriously ill person alive even where there is little or no realistic prospect of recovery to a state where they will be able to enjoy life of a reasonable quality. This can cause serious and prolonged physical, emotional and mental distress not only to that person but also to their family.

Those of us who do not want this to happen can make their wishes known in advance to their GP and family. By signing an ‘Advance Medical Directive’ (‘AMD’; also known as a ‘Living Will’) we can make our wishes clear at a time when we are mentally and physically capable of doing so.

An AMD is simply an expression of our end of life care wishes and is not directly legally enforceable in Scotland. However both the Law Society and the British Medical Association have acknowledged that, wherever possible, a patient’s wishes recorded in an Advance Directive ought to be taken into account in deciding on a patient’s best interests. In 1992 the BMA has published a Statement on Advance Directives: ‘BMA Guidance on With-holding and Withdrawing Life-Prolonging Medical Treatment and Department of Health – Guide to Consent’.

It is clear under the general law that competent informed adults have a right to refuse medical treatment in advance and that an unambiguous and informed AMD can be as valid as a contemporaneous decision. Healthcare professionals may be legally liable if they disregard the terms of an AMD if the directive is known to them and it is clear, unambiguous and applicable in the circumstances.

Under the Adults with Incapacity (Scotland) Act 2000 it is possible to make a Welfare Power of Attorney (‘WPA’) which is similar, but not identical, to an AMD. A WPA enables the attorney to make general decisions regarding matters such as day to day health and welfare, residential care, and whether to accept or refuse medical treatment, in the event of mental incapacity. An AMD is often more detailed than a WPA by defining specifically the types of treatment we do not consent to receive, and also those that we do.

It would be usual to appoint in an AMD representative (‘Proxy’) to accept or reject treatment on your behalf who should ideally be the same person as your Welfare Attorney, given that in Scotland AMDs are not legally enforceable in the way that WPAs are. If a patient lacks mental capacity then, in the absence of a WPA or an AMD, there is a presumption that they have consented to the treatment that the doctors deem to be in that patient’s ‘best interests’ within the context of their clinical judgement.

An AMD does not permit euthanasia (which involves taking active steps to shorten a life) or other unlawful procedures but is a refusal to accept the taking of active steps by our medical advisors to prolong a life in certain circumstances. Nor does it permit either the refusal of ‘basic care’ (eg the administration of medication or any procedure primarily designed to provide comfort to a patient or to alleviate pain or distress), or to insist upon futile or inappropriate treatment.

Although an AMD is likely to be given serious consideration by your medical advisors when treating you, it is essential that you discuss the document with your GP before signing it, and that a copy is left with your medical records. An AMD should also be regularly reviewed, given that medical science is advancing rapidly and new treatments may be more acceptable to you than those previously available.

If you have any queries regarding the issues referred to in this article please contact our Private Client Department.

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