With advances in medicine and good nutrition, we are living longer. That brings concern as well as comfort; the concern is one of quality of life. I often hear senior clients express their worry that they become a burden to loved ones, who may be faced with difficult decisions about treatments when a medical crisis occurs. It is not, however, just the elderly who should consider these issues.
Tragically, a young middle-aged client of mine recently suffered a catastrophic event which left him ventilated and subject to intubation, to the great distress of his elderly mother. There was no hope of recovery; he was, she said, in a “living death”, being kept alive by machines. However, he had recorded his wishes and his mother knew with certainty that he did not desire treatment. It is of comfort to her that he passed without lingering.
There is increasing awareness about the options when one comes to the end of one’s life. It is well-documented that a person should put their affairs in order by writing wills, granting powers of attorney and taking advice on tax mitigation if required. However, forward planning can extend to making decisions about the type and extent of medical intervention a person would wish. These decisions can be recorded in an advance statement (or “living will”).
But are such documents binding?
There is ongoing discussion about this and the position differs in England and Scotland. In England, living wills are enforceable through the application of the Mental Capacity Act 2005; their Scottish counterparts have no such statutory force. Through the mouthpiece of common law, English courts have accepted that such documents are binding, and it is likely such a conclusion would also be arrived at in the Court of Session. Though there is yet to be a test case, it is likely a Scottish court would regard an advance statement as binding providing that: the granter had legal capacity (ie was of sound mind), clearly demonstrated their wishes regarding the withholding of treatment, that there was evidence these wishes remained current and no question of undue influence at the time the advance statement was made.
The Mental Health (Care and Treatment) (Scotland) Act 2003 recognises advance statements if the granter subsequently suffers from mental illness as opposed to losing capacity due to a sudden illness or degenerative condition. The 2003 Act does not make Advance Statements for the treatment of mental illness binding as such, but states that tribunals and mental health professionals must have regard to the patient’s statement.
With regard to advance statements which relate to general illness or degenerative conditions, doctors ought to have regard to the wishes recorded therein – but as the law stands, these are not binding. Yet it is thought that some of the provisions of The Adults with Incapacity (Scotland) Act 2000 support the theory that advance statements are binding in Scotland. One of the guiding principles of the act is that the wishes of an adult who subsequently loses capacity should be taken into consideration when decisions are being made on their behalf. Consequently, any medical treatment administered to an adult with incapacity should take heed of an advance statement; some commentators have even gone as far to say that a doctor who does not take these wishes into account might be guilty of assault.
So, how does an advance statement operate? It records the type of treatment a person would (or would not) want given certain medical conditions. For example, if you had a severe stroke without the prospect of living an independent life would you want to have certain treatments? This should not be confused with euthanasia which requires positive action. The crux of an advance statement is passive action by withholding undesired treatment.
The person granting the advance statement should make it clear if they would wish to be treated should there be advances in medicine subsequent to the granting of the advance statement; if they do not do so, a statement could be discounted due to lack of certainty of the granter’s intention.
If you want to make your wishes known because you have clear views about quality of life, you should seek legal advice .
Your solicitor will advise how to ensure the advance statement is made known to appropriate parties and how to ensure they know it is current and in accordance with your wishes if and when a medical crisis happens.
• Nikki Dundas is private client partner at Simpson & Marwick www.simpmar.com