Code sets out framework for “living wills”

Code sets out framework for "living wills"

BMJ

Clare Dyer

legal correspondent

A code of practice under the new Mental Capacity Act for doctors and others who deal with people who cannot take decisions for themselves was issued in draft for consultation last week. The draft code, which applies to England and Wales, sets out how capacity should be assessed, how advance directives on treatment will operate, and how decisions about treatment should be taken once the act is in operation.

The act, which is expected to come into force in April 2007, sets out a statutory framework for advance directives or "living wills." These set out a patient’s wishes about future treatment and come into operation if the patient becomes incapacitated. Living wills are already binding on doctors under common law if their terms are sufficiently certain.

The code stresses that the question of capacity must be assessed in terms of the particular decision to be taken and suggests ways in which patients can be helped, if possible, to reach decisions for themselves.

For the first time, the act will allow a person who is of sound mind to appoint a friend or relative to consent to or to refuse treatment, should they later become incapacitated. And a new court of protection will be able to take decisions on behalf of those lacking capacity or appoint a deputy, such as a relative or social worker, to decide on their behalf.

The act has provoked controversy, with one tabloid newspaper claiming that it promotes euthanasia and will mean that doctors would face prosecution if they refused to allow patients to die in accordance with their "living wills" (Daily Mail, 10 March, p 1). In a bid to dispel such fears, the code points out that relieving suffering by causing death must not be a motivation for treatment decisions.

The code says that the thought, "He is suffering so much, it would be better for him to be dead," might well cross the mind of a carer. "The law cannot stop the carer from thinking such thoughts—whether out of compassion or from more sinister motives," it says.

But those taking treatment decisions on behalf of mentally incapacitated people cannot include the desirability of death in the assessment of what would be in the patient’s best interests. The code tells doctors that they must respect any refusal of treatment spelled out in a valid living will and must not weigh up whether it would be in the patient’s best interests.

But doctors cannot be obliged to provide life sustaining treatment, such as artificial nutrition and hydration, asked for in a living will, if they believe it to be against the patients’ interests.

"Wherever possible, all steps should be taken to prolong life," says the draft code. But in exceptional cases or where the patient is close to death, providing artificial feeding and hydration could cause "great suffering and loss of dignity," it adds. Doctors must take account of the patient’s wishes and weigh them carefully against all other relevant factors in deciding whether the treatment would be in the patient’s best interests, the draft guidance says.

The draft code of practice is open for consultation until 2 June and is available at www.dca.gov.uk/consult/codepractise/codeofpractice.htm.