From the Voluntary Euthanasia Society of England and Wales
What is a living will?
The living will (also known as an ‘advance directive’) allows people to leave instructions about their possible medical treatment, in case there comes a time when they are no longer capable of making decisions or of communicating them. Living wills are an entirely separate issue from voluntary euthanasia, and should not be confused with the debate about assisted dying.
What does it do?
Many people fear that, if they become ill, they could face a situation where they may be given too much treatment when there is little or no chance of recovery, or given treatment which would leave them in a condition they could not cope with. A living will can show that in the future, under clearly defined circumstances, the patient does not want treatment which will help him or her to live longer, such as antibiotics, tube feeding or being kept alive indefinitely on a life support machine.
Is it legally binding?
Although there is no law that governs the use of living wills, in common law refusing treatment beforehand will have a legal effect as long as it meets the following conditions:
- The person is mentally able, is not suffering any mental distress and is over 18 when he or she makes the request.
- The person was fully informed about the nature and consequence of the living will at the time he or she made it.
- The person is clear that the living will should apply to all situations or circumstances which arise later.
- The person is not pressurised or influenced by anyone else when he or she made the decision.
- The living will has not been changed either verbally or in writing since it was drawn up.
- The person is now mentally incapable of making any decision because they are unconscious or otherwise unfit.
These conditions have been established by the judgements in a number of recent legal cases. In 1992, the Appeal Court (in the case of Re T) showed that when an informed and able patient has made a choice which is “clearly established and applicable in the circumstances” doctors would be bound by it. This view was also confirmed by later cases (Airedale NHS Trust v Bland 1993, and Re C 1994), which stated that a document was legally binding if it represented an informed refusal of specific treatments. The patient cannot refuse measures which are clearly appropriate in the circumstances and which are provided for all patients. These measures could include basic hygiene such as washing, pain relief and the offer of being fed. Also, the patient cannot refuse treatment where his or her refusal would conflict with an existing legal requirement or his or her condition would pose a risk to other patients and medical staff.
If a patient verbally tells the doctor that he or she does not want treatment, is this valid?
Yes. As long as the patient is mentally able and understands the effects of his or her request, and has made this request over a long period of time.
What if the patient is under 18?
Young people under 18 do not have the same rights as adults. However, the Children Act 1989 emphasised that the views of young people must be considered in matters regarding their own health care. Where it is possible and appropriate, the young person and their parents or legal guardians can make a joint decision about their health care.
What are its advantages and disadvantages?
When a medical team is faced with a difficult decision about what treatment or care to give to a patient who is not able to make a decision, a living will helps the team to know what the patient would have wanted if he or she had been conscious. However, the living will will still have to be interpreted to make sure that the situation it describes does still apply to the patient. Apart from allowing the patient to control the treatment he or she receives, the living will also gives the patient the opportunity to discuss difficult issues with close family and friends.
Who supports living wills?
The British Medical Association, the Patient’s Association, the Royal College of Nursing and the Government have all confirmed that they support living wills. A recent survey of doctors conducted by The Sunday Times (November 1998) showed that 69% of British doctors think that it is a good idea for patients to make living wills.
How can I make a living will?
The Voluntary Euthanasia Society supplies standard living will forms. More about these, and how to obtain them (including a free PDF download), can be found in the debate section of this site.
“Contrary to what some have tried to assert, an advance directive is not a move towards legalising euthanasia. It is a way for patients to exercise their right to refuse treatment by anticipating a time when they may lose the capacity to make or convey the decision.”
Prime Minister Tony Blair, December 1997
“A person who has the mental capacity to make a valid decision not to receive treatment is entitled to do so…Patients may express their refusal of a course of action or a particular treatment in advance of losing the mental capacity to decide or express their wishes.”
Public Health Minister, Tessa Jowell, July 1997
“My wife and myself have both signed a living will form. For us this is a very personal decision.”
Paddy Ashdown, leader of the Liberal Democrats, September 1998
“Competent, informed adults have an established right to refuse medical procedures in advance.”
“It is unacceptable to force treatment upon a patient.”
“Health professionals may be legally liable if they disregard the terms of an advance directive…”
The British Medical Association (Code of Practice 1995, drawn up together with the Royal College of nursing and other Royal Colleges).”