ADVANCED DIRECTIVE -V- LASTING POWERS OF ATTORNEY IN PERSONAL WELFARE

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1 ADVANCED DIRECTIVE -V- LASTING POWERS OF ATTORNEY IN PERSONAL WELFARE WHICH ONE REALLY LETS YOU DECIDE? Protecting your right to choose The developments in medical science mean more lives are now saved then ever before, but this also means that the possibility of preserving life with no real hope of a full recovery ever more real. The objectives of preservation of life and the provision of a quality of life can give rise to conflict. For many the freedom to live as you choose extends to the freedom to die as you choose. (a) leave an Advanced Directive stating their advanced refusal of specific treatment or (b) appoint attorneys to speak for them when they no longer can under a in relation to Personal Welfare. Which is better? Which option has more chance of enabling your wishes in regard to your future treatment or healthcare to be adhered to? The answer, like the question, is not simple There is a difficult balancing act of views at a distressing time between you, your families and your healthcare team, many of whom will have sworn an oath to preserve and protect life at all costs. It is accepted that competent and informed adults who are capable of understanding the implications of their decisions have an established legal right in common law to refuse medical procedures or treatment. However, how can this accepted right be exercised when you have lost the mental capacity or the physical ability to give such instructions..? Under the Mental Capacity Act 2005, it is recognised that individuals may wish to: What is an Advanced Directive? Every competent individual has a right to refuse treatment or to state circumstances in which they would not wish treatment to be offered to them. In the event that this does not include treatment with the potential to be life sustaining, this can be successfully discussed with your GP or other medical practitioner and formally recorded in the notes. This will be sufficient to record your objection to the proposed treatment should the need arise. As it is not life sustaining, it is likely that the practitioner will be able to find an alternative treatment that you do not object to. It is also recognised that such wishes can be formally recorded in an Advanced Directive ( the Directive ). This is

2 a document where your refusal of certain specific treatments or circumstances in which you would not want treatment to be offered are set out. But in the case of advance directives to refuse life sustaining treatment, the directive has to comply with certain formalities. If this includes a refusal of specific treatment or a refusal of treatment in stated circumstances which will, inevitably lead to death, the Directive must: - be in writing, enclose a statement confirming your understanding that you will die as a result of your refusal and be signed and be witnessed. Will the Directive be binding? If, at the appropriate time, the doctor believes that the Directive is valid and it is applicable to the specific treatment being proposed or circumstances at hand and there is no evidence to suggest that you have changed your mind, then it is binding and will be followed. What is a ( LPA ) in relation to Personal Welfare? An LPA allows you to appoint one or more attorneys to take decisions on your behalf in relation to your personal welfare. Such decisions can range from what to wear, eat and where to live to expressly authorising your attorneys to either consent or to refuse life sustaining treatment. You can choose any individual(s) who you would like to act as your attorneys - provided that you are 100% sure that they will always act in your best interests and adhere to your wishes. Life sustaining treatment has no formal definition other than any treatment which is considered necessary to keep you alive. Such a simple definition therefore has wide application. For example; to refuse being treated with insulin will be potentially fatal to a diabetic. If expressly authorised in the LPA in the prescribed form, your attorneys will have the responsibility of deciding whether to consent to or refuse any treatment that is required to keep you alive provided that they believe that this decision is in your best interests. Your attorneys are obliged to act in your best interests in whatever decision they take on your behalf. This means that they must consider a number of factors ranging from any views that you may previously have expressed, likelihood of any recovery or sustainable recovery and views of other individuals interested in your care such as healthcare professionals and family members. All of these factors have to be evaluated by your attorneys before deciding whether to consent or to refuse life sustaining treatment. However, whilst your attorneys must consider such factors, it is still their decision as to what they consider is in your best interests. Ultimately they can still be over ruled by doctors responsible for the healthcare. Which one has precedence Advanced Directive or LPA? A Directive in existence prior to the 1 st October 2007 (the introduction of the Mental Capacity Act 2005) should be reviewed to ensure that if a treatment that is likely to be life sustaining has been refused, a written statement accepting these risks has also been included and that it has been signed and witnessed in accordance with s.25 Mental Capacity Act There is a risk that a so called living will particularly if home made will no longer be effective following the introduction of the Mental Capacity Act.

3 If you had a previous Directive and subsequently make an LPA in relation to Personal Welfare expressly authorising your attorneys to make decisions in regard to life sustaining treatment, the Directive is revoked and the decision rests with your chosen attorneys. Conversely if you have a valid LPA expressly authorising your attorneys to make such decisions and you subsequently make a Directive, the Directive will deal with the issue of refusing life sustaining treatment provided that it is valid and applicable to the specific treatment or circumstances at hand. The later Directive revokes the attorneys authority to make such decisions. A side by side comparison may assist your decision. Advanced Directive CAPACITY You must be broadly aware of the treatments and options available and you must also have considered the fact that medical science may mean that new treatments might become available before the Advanced Directive becomes operative. The Directive can ONLY be exercised when you have lost capacity. You must understand the nature and extent of the powers that you are giving to your attorneys and what types of decisions they can make on your behalf. You must have an understanding as to what life sustaining treatment could be if you are expressly giving your attorneys this authority. Such authority can ONLY be exercised when you have lost capacity. DECISIONS You may refuse specific treatments or state circumstances in which you would not want treatment to be offered as expressly set out in the Directive. Nothing more. Doctors tend to interpret Directives restrictively although there is increasing case law to suggest that the courts are more flexible and robust in their interpretation of Directives. You may make decisions in relation to all aspects of your personal welfare. Your attorneys may be expressly authorised to consent or refuse to life sustaining treatment on your behalf. Your attorneys have to be consulted in regard to any treatment that is required to keep you alive. This is possibly wider than a Directive as some situations may not have been contemplated when the Directive was drafted. The LPA does have the advantage of attaching itself to any decision regarding any treatment which is potentially life sustaining at the appropriate time even though it may not have been foreseen.

4 VALIDITY A Directive is legally binding provided that the following circumstances have been met: You must be competent when you made the refusal You must have contemplated the specific situation which has arisen You must have understood the consequences of refusing such treatment You must not have been unduly influenced by others in making your decision There is no evidence that you have changed your views since making the Directive. If the appropriate formalities have been followed, it is a valid declaration. EFFECT If valid and applicable to either the treatment or the circumstances, it is treated as express instructions from you yourself. Your attorneys can consent to treatment on your behalf as well as refuse. A Directive can only refuse. There is no need to consult others and no need for any assessment of what is in your best interests. It is an express communication and therefore the doctor must follow it. If you do not have capacity, your attorney is authorised to make the decision. However, your attorney (a) cannot be motivated by a desire to bring about your death and (b) any decision must be in your best interests. The need to act in your best interests imposes a checklist of factors including consulting other individuals interested in your care such as healthcare professionals and family members. There is a vast potential for dispute (see later). Once the attorney has made their decision, it is just one decision that the doctor will take into consideration. He will still consult with other family members and other medical colleagues before deciding how to proceed. Your attorneys will have

5 EFFECT (CONTINUED) a lot of weight placed on their decision but it is not taken as a direct instruction from you in the same way that a valid Directive is. FORMALITIES If you are not refusing life sustaining treatment or treatment that may result in death, there are no formalities. Oral communication or entry into medical notes or care plan will suffice. If it is to include refusal of such treatment it must be (a) in writing (b) include a statement that you understand that you may die as a result and (c) be signed by you and witnessed. You must use the bespoke form. You must expressly authorise your attorneys to consent/refuse life sustaining treatment and this must be signed and witnessed in addition to the signature and witnessing formalities of the rest of the document. A Directive is applicable to treatment if (a) valid and (b) applicable to the treatment specified or the circumstances arising. An Advanced Directive is not valid when: (a) treatment is not specified (b) any circumstances are absent or there are reasonable grounds for believing that your views have changed. POTENTIAL PROBLEMS Not having sufficient foresight to refuse the specific treatment currently being proposed or failure to outline the circumstances clearly enough. This can be remedied by taking specific advice and using an approved precedent. Doctors interpret such terms within a Directive restrictively. However, the courts are more aggressive in overturning such medical decisions and recognising a competent adult s right to refuse in advance. However, the matter The Attorney s view is just one that the doctors will consider. Whilst such views will have heavy weight attached, it is still just one of several views that must be considered. It is not your express views but rather your beliefs as interpreted by your Attorneys in accordance with what is in your best interests. The Attorney is in a position of unenviable responsibility. Be realistic when appointing an individual your attorneys are obliged to take into

6 POTENTIAL PROBLEMS (CONTINUED) would have to be brought before the court which could be extremely distressing at such a time. If there is a reasonable belief that your views have changed the application of the Directive can be avoided. Consequently there is a lot of flexibility as a family who is understandably distressed may allege that you have changed your mind and if the doctor believes that such an option is reasonable, they can ignore your wishes. It is therefore vital to make your views known to your family members and friends and to keep these views under constant review so that there can be no allegation that you have changed your mind. It may be argued that if you fail to constantly up date the advanced directive there is greater scope for saying that you have changed your mind. account the views of others in order to act in your best interests as required under the Mental Capacity Act Such views are likely to be from the family and although an attorney can disregard them if they have a reasonable belief that their decision is in your best interest how realistic is it to expect them to do this in such distressing circumstances in the face of such potentially emotive pressure? There is a potential for conflict between (a) the healthcare professional and the attorney and (b) the attorney and other family or friends. REMEDY IF THERE IS A DISPUTE The Court must decide. In the event of any dispute proceeding to court treatment will continue until the court rules. REMEDY IF THERE IS A DISPUTE The Court must decide. SUMMARY If you create a valid and applicable Advanced Directive under s.25 Mental Capacity Act using a recognised precedent, it will be valid. It will be viewed as a direct instruction from you provided that it is valid to the treatment or circumstances specified. It may be avoided if the treatment or the circumstances do not fit or there is reasonable belief that your views may have changed. No-one else bears the responsibility for making The LPA has greater pragmatic ability to automatically apply to the treatment at the time due to the wide definition of life sustaining treatment. This is wider than a Directive which must rely on clear and unequivocal drafting. Attorneys must apply the best interests test which means consulting other interested parties and leading to greater potential for conflict. It necessarily involves subjective interpretation by the attorneys as to what they believe is in your best interests.

7 SUMMARY (CONTINUED) such a decision on your behalf. Position of huge responsibility potentially family divisive and a huge burden. All factors and pressures that could alter your attorneys perception of what is in your best interest and lead to your wishes not being interpreted as you wish. Ian Attorney s decision can still be over ruled by Doctors. BEST ADVICE COMBINE THE TWO! 1. Create an LPA limited to making other personal welfare decisions and expressly exclude the ability to make decisions in regard to life sustaining treatment. 2. Make an Advanced Directive whilst you are mentally fit, in accordance with s.25 Mental Capacity Act 2005, register it with the doctor, and discuss it fully with your family members. Use a recognised precedent and get your GP to approve terms and to make a note in your medical notes that you have understood the significance of your Directive which could assist in the event of a dispute in the future. This way, decisions regarding the refusal of life sustaining treatment are yours. It is not subject to any subjective interpretation of your wishes by an adversely pressured and distressed attorney and will be treated as direct instructions from you even if you are incapacitated at the time. 3. Keep your arrangements under review. Remember that Directives can be overruled if there are reasonable grounds to believe that you have changed your mind make sure that all relevant parties know that you have not diary entries, GP notes, Care Plan, Social worker but most of all keep your family updated as to you wishes. If they are aware that they are acting in accordance with your wishes, this may assist them at an unenviably distressing time.

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