Living Wills and Advance Directives
Your will is a document which declares your intention as to what is to take place on or after your death and usually, but not necessarily, deals with the disposal of your property. A living will is not a will in the true sense of the word. A living will is the popular name for what lawyers call an advance directive, that is to say a document which sets out what medical treatment you wish, or do not wish, to undergo in specified circumstances before your death.
Advance directives are recognised by the common law and have their origin in the fact that, as one judge has put it, 'a mentally competent patient has an absolute right to consent or refuse consent to medical treatment for any reason, rational or irrational, or for no reason at all even where that decision may lead to his or her own death'. The question is one of your right to self-determination and what you see to be in your best interest. For others, such as doctors, to override your wishes is 'benevolent paternalism' and a criminal and civil assault. Medical treatment must not be confused with basic nursing care. There is no right to refuse basic nursing care essential to keep you as comfortable as possible such as washing and feeding by spoon as opposed to artificial feeding.
To have a right to forgo medical treatment or have it withdrawn at your request is not the same thing as having a right to die, even if death will inevitably follow. The European Court has confirmed in the case of Pretty v United Kingdom that there is no general right to die as such in English law. If you are mentally competent but physically incapable, a general right to die would involve the assistance of others in the withdrawal of basic medical care or the introduction of a positive element with the primary intention of causing death, both of which are unlawful euthanasia. Although a bill entitled the 'Assisted Dying for the Terminally Ill Bill' has been presented to Parliament to allow a competent adult, who is suffering unbearably from a terminal or serious and progressive illness, to receive medical help to die at his own considered and persistent request and to cover the provision of pain relief medication for a person suffering from such an illness, it has not yet been - and may never be - passed.
Advance directives are useful in that they may be relied upon if at a future date you lose the powers of making decisions or communication, e.g. as a result of falling into a coma or suffering a stroke. They can save relatives and doctors much worry about what you would wish when agonising decisions have to be made and help them to achieve the correct decision.
There is as yet no Act of Parliament governing living wills in English law, although the Mental Capacity Bill which is now being considered by Parliament contains proposals to put them on a statutory footing and sets out the formalities which will be necessary to make them valid. Unless and until the bill is passed there are no set formalities for advance directives, but common law principles suggest that to be valid your living will must be freely made and you must be mentally capable of making balanced judgements and at least 18 years old at the time the will is made. The will must state your true wishes and accordingly it must be made voluntarily, without pressure, influence or encouragement by any other person. Your judgement must not be adversely affected by illness, mental upset or anything else when you make the will.
The advance directive should clearly state the nature of the treatment you wish to have or to refuse and the circumstances in which it is to be acted upon. The directive should make it clear that you understand both the treatment and its likely effect.
The will must not have been revoked, even orally, by the time the question of carrying out the treatment arises and if tested in a court, the court will take into account, but not necessarily follow, your orally expressed wishes, even if you are under the age of 18. To assist from an evidential point of view if it comes to be tested in court, an advance directive should be in writing, dated and signed and witnessed by at least one independent witness who will have nothing to gain from your death.
Discussing the will with the family members could lead to the suggestion that they may have applied undue influence.
If you make a living will you should review it frequently because your wishes may change in the light of advances in medical science and care should be taken to ensure that you make the existence of the will and any changes to it known to your doctor, e.g. by lodging it with him. You should also consider and enquire of the relevant company whether it would consider any life or endowment policy you might have might be invalidated by the will on the grounds that you might be considered to have committed suicide.
