Are advance directives legally binding or simply the starting point for discussion on patients’ best interests? Ethical view

Confronted with a legally valid advance directive, medical staff in England and Wales are essentially bound to follow its terms if they are applicable to the circumstances since the passing of the Mental Capacity Act 2005. The act enshrines the concept of autonomy in statute, allowing individuals to choose to avoid a particular treatment that they would, for whatever reason, find unacceptable. In Scotland, there is no statute that gives legal effect to advance directives, but there is a general view that they should be followed. In this case, there is no evidence that the patient was not competent at the time she made her advance statement. Her decision was based on her observation of the deaths of her parents and her concern not to suffer in a similar way. Her determination to avoid this fate seems to be evidenced not only by making the directive but also by repetition of her wishes over the years and by the fact that she lodged a copy of the document with several people, leaving them in no doubt as to what she wanted.

When a condition is life threatening but treatable, it is obviously extremely distressing for healthcare professionals to allow the patient to die, but this is what the law requires, and liability could follow a deliberate failure to abide by the terms of an advance decision to reject treatment. On the other hand, no liability will follow the withholding or withdrawing of treatment if the healthcare professional “reasonably believes” that there is an existing advance directive that is valid and applicable.

Although the facts in this case seem quite straightforward, there may be others that are not so clear cut. What if there is doubt about the capacity of the individual to execute a valid directive? For example, could it be said that if someone was depressed at the time of taking the decision to reject treatment in the future or was suffering from a mental illness they were not capable of making a legally valid decision? The law does not assume an inevitable lack of competence in these situations. All adults are deemed to be competent, although this presumption can be rebutted by evidence to the contrary, and the act spells out that for incompetence to be established the person should be “unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

Of course, healthcare professionals treating an unconscious patient in an emergency setting will have no easy way of ascertaining the person’s state of mind when the decision was made. If in doubt, they would be well advised to consult the patient’s family or general practitioner, and ultimately they may decide to seek a court decision about the validity of the directive. Where such doubt reasonably exists, the act is clear that there is no liability if life sustaining treatment is provided while awaiting the court’s decision.

However, this should not be interpreted as allowing healthcare professionals to use the courts to avoid respecting the patient’s competent prior wishes, just as a healthcare professional confronted with a contemporaneous refusal of treatment cannot impose it. The act intends to give the same validity to an advance decision as to a contemporaneous one and healthcare professionals should treat it in this way, however difficult that may be.