The first case to be heard on the validity of Living Wills (also known as advance decisions) since the Mental Capacity Act 2005 came into force in 2007 has recently come before the Court of Protection.
Background
An advance decision allows an individual to refuse specified medical treatment at a time in the future when he/she may lack the mental capacity to consent to that treatment. An advance decision that is valid and applicable in the particular circumstances is legally binding.
In November 2011, XB, a 67 year old man who suffered from Motor Neurone Disease, made an advance decision to refuse life sustaining treatment, such as artificial breathing support, in the event that he became unable to communicate his wish in this respect to the medical staff at the relevant time. The advance decision had been prepared in the presence of a number of witnesses and XB had communicated his consent to the contents of the decision with eye movements.
XB later lost capacity to communicate his wishes by any means. A carer of XB queried whether XB had actually communicated his consent to the advance decision and the NHS therefore applied to the Court to ask for clarification on the matter. The Court found that XB had made a valid advance decision so that the medical staff were bound to follow it.
The Court stressed the importance of clarity when drafting an advance decision and the need for health authorities involved to investigate advance decisions as a matter of urgency should they have any doubts over their validity.
Comment
Although the case does not mark a new legal development, the care with which the Court examined the validity and applicability of the advance decision emphasises the importance of having a clearly worded advance decision in place that complies with the necessary formalities. This will ensure that an individual's wishes regarding life sustaining treatment will be followed at a time when the individual is no longer able to communicate these.
Many individuals do not want their loved ones to bear the burden of making decisions regarding their life sustaining treatment and hope to limit the scope for family disagreement at a highly emotional time over such treatment by making an advance decision. To ensure that the advance decision is valid, the wishes set out in it must be specific to the medical circumstances which later arise. It is therefore important that an advance decision is regularly reviewed and revised – we would recommend every 3 to 5 years – to ensure that it remains applicable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
