The COVID-19 pandemic has focussed thoughts on the possibility that either you or a family member might end up in hospital. It is possible to plan ahead for such an unfortunate event and record your decisions regarding medical treatment you would wish to refuse in certain situations in a document called an Advance Medical Directive (also known as a Living Will). Whereas most people are aware of the importance of putting in place a Will and a Power of Attorney, Advance Medical Directives are less well-known and can often be an invaluable document for your loved ones at a difficult time.
An Advance Medical Directive (AMD) allows a person to record their views and wishes on any medical treatment that they do not want to receive in the future. This lets your family, carers, and health professionals know your wishes if in future you lack the capacity to communicate such a decision yourself. You can use an AMD to refuse any medical treatment, including life-sustaining treatment (which may include, for example, being put on a ventilator if you cannot breathe on your own, having CPR administered if your heart stops, or being given food or fluids artificially).
To make an AMD in Scotland you must have legal capacity, which means you must be over the age of 16 and be able to fully understand the nature and extent of the document you are signing. It is important to consider what you want to include in the AMD and the various situations in which you would wish to refuse certain treatments. It may be helpful to discuss this with your family and with your doctor. To prevent any future challenge, it is generally advisable to ask a solicitor to prepare and witness the document and in so doing confirm that you both understood its content and that you were not pressured or influenced into signing by any other person. At Murray Beith Murray, we have considerable experience of the sort of treatments that you may wish to include in your AMD and can guide you through the preparation of a bespoke document tailored to suit your instructions. Once an AMD has been signed by you and witnessed, it is important to give a copy of this to your GP as well as to anyone else who would be contacted in an emergency, such as a close family member or a carer or nurse.
It is not possible to include anything illegal in an AMD (for example, asking for assistance to end your life), to refuse care that keeps you clean and comfortable, or to demand certain treatments. Doctors will decide whether a treatment is medically appropriate, and then it is for you (or those authorised to make such decisions on your behalf) to decide whether you want that treatment.
In Scotland, an AMD is not strictly legally binding. Having said that, the Adults with Incapacity (Scotland) Act 2000 directs that when making a decision relating to medical treatment, healthcare professionals and anyone else authorised to make welfare decisions on your behalf must consider your past and present wishes. Accordingly, in practice, AMD’s are widely recognised as persuasive evidence of your wishes and can therefore be a particularly useful way of communicating with your family and healthcare professionals when you are unable to do so. This can be especially helpful when families are faced with a difficult decision, potentially alleviating a heavy burden, and limiting the scope for discord.
In England and Wales, an AMD is legally binding provided certain conditions are met, which means that they must be followed by healthcare professionals. Under the Mental Capacity Act 2005, there are several statutory requirements for an AMD to be valid, namely:
If you want to include a decision to refuse life sustaining treatment, then the AMD must also be witnessed, with a statement included that your decision applies even if your life is at risk or shortened as a result.
It is also important to note that while you can have both an AMD and a Lasting Power of Attorney for Health and Welfare (LPA), whichever was made more recently will take priority when a decision needs to be made about your treatment and care. An LPA allows you to give your attorney the power to make decisions about life sustaining treatment, and so if your LPA is prepared after your AMD then your attorney will be able to override the earlier AMD.
It is important to keep your AMD updated. New treatments may develop for an illness you have. Your personal circumstances may have changed; for example, you may have converted to a religion that has certain values or beliefs about medical treatments. You may have been diagnosed with a serious illness or have to go into hospital for major surgery. It is generally accepted that the more recently an AMD has been reviewed, the more likely it is to be accepted as a reflection of your current wishes.
If you would like to implement an Advance Directive or find out more, our team would be delighted to assist.
At Murray Beith Murray, we are committed to providing a high-quality service during these unfamiliar times. If this article has raised any questions or you would like to discuss any aspect of an Advance Medical Directive, please complete our contact form or call us on 0131 225 1200 to speak to one of our specialist solicitors.
Our personal, attentive service coupled with sage, astute and commercially-minded guidance, allows us to build long-term, ongoing relationships with our clients, helping them to protect assets throughout generations. Our highly personal service reflects our culture, which is centred on integrity and trust, and the expert guidance we provide has been designed to be an investment, not an expense.