This increased awareness is no doubt at least partly behind the growing number of patients having advance directives prepared, setting out what they want in the way of medical intervention should they become ill in the future and lose capacity to state their preferences.
GPs do not have to be legal experts to deal appropriately with advance directives but they do require a basic appreciation of the underlying principles in order to discuss important considerations with patients.
In Scotland there is no clear precedent to indicate how courts would view advance directives, but case law in England appears to support them as legally binding in certain circumstances. Similarly, there is no basis in statute for advance directives in Scotland, while in England they are recognised in the Mental Capacity Act 2005.
There are several key points that are worth remembering when discussing advance directives with a patient:
- Firstly, advance directives may specify treatments of any kind that a patient wants or does not want in the future, and they may be verbal or written. However, any advance directive refusing life-saving or life-prolonging treatment must be written, signed and dated by the patient and witnessed and signed by a third party.
- A patient must have the mental capacity to complete the directive and must not do so under duress from others.
- At the time when the directive is being enacted, it must be clear that there has been no significant change of heart on the part of the patient since the directive was first completed.
- The situation or illness faced by the patient must be the same as that described in the directive for it to be applicable.
- Only advance refusals of treatment may be legally binding (England and Wales): advance requests for specific active treatment can certainly be made, but doctors cannot be forced in this way to agree to provide treatment in the future against their better judgment.
- For them to be of value as legal documents, advance directives must not be too specific or too general in their terms.
Considering these points it can be seen how problems might arise, and these are best illustrated by some examples drawn from real-life situations.
Mr A, a 65-year-old physically disabled patient with learning difficulties, presents you with an advance refusal of treatment directive, but later his friend informs you that she has concerns about the care being provided to the patient by his family, who have been heard to say that they are fed up having to look after him. The friend has heard about the directive and is aware that the patient was taken along to a solicitor by his daughter to have it completed.
Here the issue of mental capacity arises and it would therefore be important to discuss the terms of the directive to make sure that the patient understands its implications clearly and has capacity to agree to it. There may also be issues of duress from a family member, and it may be worth clarifying with the patient his own feelings about his situation and his reasons for agreeing the directive.
Miss B completes an advance directive stating that as a Jehovah’s Witness she does not want a blood transfusion, even if her life is at risk. She is subsequently admitted several years later gravely ill due to heart disease and requiring a life-saving blood transfusion. Her husband points out that she left the Jehovah’s faith when she met him and her views have changed.
There is significant evidence of a change of opinion which requires consideration. This was the basis of a real-life case which was heard in an English court. Weighing up the evidence it was agreed that the patient’s views were likely to have changed, and the blood transfusion was sanctioned.
Mr C, a patient with a malignant brain tumour currently in remission, completes an advance directive refusing life-prolonging treatment if the tumour recurs and he loses consciousness. Unfortunately, he suffers a haemorrhagic stroke as a consequence of other treatment, and becomes comatose with no prospect of recovery.
The advance directive indicates that this patient would not wish life-prolonging treatments if these appeared futile, but because it relates specifically to brain tumours, it is not relevant to his current situation. It may still be used as evidence when considering his best interests, but would not be legally binding.
In summary, it is increasingly likely that at some point in your career you will be asked to take note of an advance directive and you must be aware of the limitations and complexities that exist. Any significant uncertainty about the validity of an advance directive should be addressed by seeking legal advice, as contentious cases may well require settlement in court. Whilst awaiting a decision, it is of course important in disputed situations to continue immediately necessary treatment to protect the patient until a decision is reached.
The GMC has produced useful guidance on advance directives and other end-of-life issues in the booklet Treatment and care towards the end of life: good practice in decision making (2010) and this can accessed at www.gmc-uk.org
Dr Barry Parker is a medico-legal adviser at MDDUS