Living wills will have to specify treatments that patient is refusing

BMJ 2004; 328 doi: (Published 29 April 2004) Cite this as: BMJ 2004;328:1035
  1. Clare Dyer, legal correspondent
  1. BMJ

    Advance directives—also called living wills—will have to specify clearly the treatments a patient is refusing, under improvements announced last week to legislation which will put them on a statutory footing.

    The constitutional affairs minister, Lord Filkin, outlined a range of changes to the Mental Incapacity Bill after recommendations by interest groups and by a parliamentary committee scrutinising the bill.

    Embedded Image

    Michael Schiavo is fighting to have the feeding tube removed from his wife, Terri, who has been in a coma in Flo rida for 13 years. Living wills should make such cases unnecessary

    Credit: CHRIS O'MEARA/AP

    The government had already accepted the committee's suggestion that the bill be renamed the Mental Capacity Bill, to emphasise that people will be assumed capable of taking their own decisions where possible.

    The bill will plug a loophole in the law of England and Wales by setting up a framework for decisions to be taken on behalf of adults incapable of deciding for themselves because of, for example, dementia, learning disability, or a head injury.

    The provisions on advance directives will allow people to specify, while still capable, what treatments they want to refuse in the event they later lose capacity.

    Such advance refusals are already binding on doctors under common law, but the bill will create greater certainty.

    Lord Filkin said: “We don't want advance decisions to be vague or to be pieces of paper that are not revisited for many years. Nor do we want to put doctors in an unfair and uncertain position.

    “I want to give people who fear they may lose capacity the choice of refusing treatment—just as people with capacity do—but I want them to take this decision understanding their medical condition and what treatment might be available.”

    Among the new provisions:

    • Advance directives will have to specify clearly the treatments >to which they apply.

    • Before an advance directive is followed, a doctor must be satisfied that it has not been revoked and that there is no indication of a change of mind or a change in circumstances affecting the decision.

    • If there is doubt about validity and applicability, this must be resolved in favour of the preservation of life.

    A code of practice will recommend that advance directives should be in writing and witnessed by someone independent, should be discussed with a healthcare professional, and should be regularly reviewed and updated.

    With advance directives, only refusals of treatment are binding. Under English law no one can insist on having a particular type of treatment. But Lord Filkin added: “Positive requests for treatment will need to be taken account of when making a decision on behalf of a person lacking capacity.”

    The Making Decisions Alliance, a coalition of 30 voluntary organisations including Action for Elder Abuse, Age Concern England, and the Alzheimer's Society, welcomed the improvements to the bill.

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