Magazine

Legislative Proposals on Living Wills

The Law Commission's new paper on Mental Incapacity (England)

Several years in the making, this 290 page report has been heralded as one of the most thoughtful and thorough analyses of living wills published in this country to date.

Instead of attempting to push a "new law" on living wills, the Commission has made a thorough examination of the existing law, recognised that such legal provision as currently exists "...is out of step with modern social conditions and the present day understanding of the rights and needs of those who lack decision-making capacity" and is "unsystematic and full of glaring gaps."

The Report covers more than just living wills - it looks, for instance, at protecting vulnerable people from harm. But the analysis of the situation regarding advance directives and the principles behind them is transforming and original; yet it is developed from a broad base and so offers little that will seem controversial.

The remit of the Law Commission was set up in 1965 by Act of Parliament for the specific purpose of promoting the reform of the law. This current volume is an elegant example of the "least amount of legislation to get the job done." Many bills have been put before parliament and rejected because they lacked foundation. The weight of these new statutory proposals derives largely from the excellent foundation, from which they proceed with a logic more like the force of gravity. Secondly they are minimalist: they do not so much suggest major revision of the law as overhaul and clarify existing law by way of statute.

In a substantial chapter entitled Advance Statements about Health Care the report at a stroke cuts through and highlights the inadequacy of the long-standing debate over whether to use the term "advance directive" or "living will." A disadvantage of both these phrases, says the Law Commission, is that they "concentrate attention on the existence of a piece of paper." The fundamental question is not the piece of paper but the nature and legal effect of the views which have been expressed by the person concerned. There is a strong distinction (echoed by the BMA Code, see page 4 of this issue) made between advance decisions and advance expressions of views and preferences. These differences are more important than whether they are enshrined in a written document, although a document will undoubtedly be an important piece of the picture.

The Commission recommend that an "advance refusal of treatment" is defined as "...a refusal made by a person aged eighteen or over with the necessary capacity of any medical, surgical or dental treatment or other procedure and intended to have effect at any subsequent time when he or she may be without capacity to refuse consent." The authority to treat is then invalidated if "...an advance refusal of treatment by the person concerned applies to that treatment or procedure in the circumstances of the case." This approach is put forward as a way of superseding the tests for "validity" and "applicability" proposed in the case known as "Re T".

An advance decision must be very specific and apply exactly to the situation that has arisen in order to be binding. The Commission recognise that many of the difficulties associated with this do not, fortunately, apply to statements of wishes; but, if the statement of wishes is a such favourable default mechanism, how is it possible to give it legal weight so that a doctor will not ignore it?

The Commission's solution is an ingenious and lucid interpretation of the law as it now stands, developed into a recommendation that such rules be enshrined in a new law. If there is no valid refusal of treatment then anything done in relation to the health care of a person who lacks capacity to make his or her own decision about that matter must be (1) reasonable and (2) in the best interests of that person.

But, you will object, many doctors feel that it is in the "best interests" of the patient to treat them irrespective of any living will, especially one that can be challenged as perhaps inapplicable to the exact circumstances that have arisen. So here we have some new rules on best interests. The report proposes that, in deciding what is in a person's best interests, regard must be had to four listed matters, namely:

(1) the ascertainable past and present wishes and feelings of the person, and the factors he or she would consider,
(2) the need to permit and encourage the person to participate,
(3) the views of other appropriate people, and
(4) the availability of an effective less restrictive option.

What happens if these criteria are ignored? The conclusions drawn are powerful: "As far as health care is concerned, these new rules mean that treatment will not be lawful unless it is both reasonable and in the best interests of the particular patient. It will not be in the best interests of the patient unless the doctor has taken into account the ascertainable past and present wishes and feelings of the patient and the factors he or she would have considered. If the treatment given is not lawful then the doctor is liable to an action in damages for battery if, as is likely, he or she has touched the patient."

Report by C Docker