Posted on Dec 06, 2017 in Private Client by Graeme Dickson
Private Client solicitor, Graeme Dickson highlights the benefits of a Living Will, following the recent case of a lady who had aggressive life sustaining treatment imposed against her wishes and contrary to specific directions she had given.
I read this morning a horrendous story about a lady who had aggressive life sustaining treatment imposed against her wishes and contrary to specific directions she had given. At the core of the situation was the misplacing of the crucial Advance Directive by the NHS Trust treating her. The case does however highlight a few points which could have led to a much better outcome.
What is Living Will?
A Living Will, often called an “Advance Directive”, is a formal document in which an adult indicates their wishes in respect of treatment that they would want to receive (and importantly what treatment is not to be administered) in an emergency or when they cannot express their views. It is the opportunity for an individual to confirm how far they want medical staff to go to keep them alive following a life-altering event such as a major stroke, paralysis or the later stages after a terminal diagnosis.
While medical science may make it possible to keep people alive, often individuals have strong views as to when such treatment will not assist their quality of life and in fact such robust measures should not occur.
So can you give a binding instruction?
In Scotland, Living Wills are not specifically covered by law. However, a validly made Living Will, will probably be legally binding on medical staff provided that:-
- you were mentally competent when it was put in place, and understood the consequences of refusing treatment;
- the circumstances in which you wish the Living Will to take effect have occurred;
- you were not influenced coerced into putting the Living Will in place.
The law does provide a framework for regulating decision making relating to the welfare of adults who are too ill to participate in the decision making process. A key part of that is that those making the decisions on behalf of a person, must take account of the individual’s past and present wishes. The BMA strongly supports the principle of Living Wills. On that basis, Medical staff are therefore likely to be bound by a Living Will but this point has never been fully tested in the courts.
So how can I make sure my wishes are respected?
It is vital that those treating an individual know about the Living Will. In Mrs Grant’s case, the document had got lost in a pile of papers so the medical staff acted without knowing what her wishes had been.
Tragically, Mrs Grant appears not to have told her children about the living will and therefore they were not able to intervene until much later when the GP (who did know about the Living Will) became aware of the situation. It this therefore crucial that individuals make sure their family know about their wishes also. This ensures people who love and care for you can highlight your wishes and also further reiterates the clarity of the wishes you had expressed.
Is a Living Will enough to help if I lose capacity?
Not really. A Living Will deals with a specific situation namely the refusal of life sustaining treatment when consent cannot be properly given or withheld by the adult. But there are many other situations where an adult who cannot act for themselves may need help. A Power of Attorney is a document that should be put in place to cover the wider possibilities. We’ve talked about their benefits before and would strongly recommend every adult considers getting one put in place.
So what do I need to do?
Individuals should discuss matters with their family and their GPs so that the extent (or limits) of any Living Will can be considered. This allows issues to be fully discussed and understood. Death and illness are not pleasant topics but making sure you have expressed your wishes can take a weight off your mind and help to ensure that if the worst happens any treatment is appropriate to your wishes.
Should you wish to put an Advance Directive/Living Will in place, contact us. Clients often put a Living Will in place at the same time as a Power of Attorney.
If you have questions about Living Wills, or if you have any questions about drafting a Will or Power of Attorney please contact Graeme Dickson in our Private Client team on 01334 477107 or by email at firstname.lastname@example.org or contact a member of the Private Client team.
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