This article was commissioned because I feel it an important part of the practice of Druidry. Death can come in an instant, but many die more slowly, crawling
through the last months, weeks or days, dependent upon the care of
others. Modern medical technology is not always the answer. Indeed, when it is not available, the soul often finds a natural courage and dignity within the care of a home environment, or in the arms of nature. It must be our own choice, but it is one worth considering. Bobcat
A Living Will is a formal document telling doctors how you wish to be treated if, while still alive, you become too ill to make decisions for yourself or communicate your wishes. Living Wills are also called “advance statements”, “advance directives” or “advance decisions”.
It is not a matter many people wish to contemplate, but an accident or disease can result in any of us being unable to make even the most basic decisions about our lives, for example due to severe head injury or stroke, advanced dementia, or terminal illness. In recent times medical science has gained the ability to keep people alive for longer who are deeply unconscious or totally paralysed. However, many people are concerned that they don’t want treatments they consider undignified, or distressing or unethical for some reason. In particular, some do not want their physical life artificially prolonged if they are in constant pain or their minds are severely damaged and there is no hope of recovery. And any patient will wish to ensure that doctors are aware of their values and spiritual beliefs when deciding what is in their best interest. If you have similar concerns about future treatment, you should consider writing a living will, even if you are currently young and healthy - after all, the future is uncertain.
The Law
Every adult has the right to refuse a health treatment, including refusing treatment in advance before it becomes needed, but only as long as they have what lawyers call ‘mental capacity’. The legal concept of mental capacity determines whether the law accepts that a person can freely choose for themselves and enter into binding agreements. A new law in the form of the Mental Capacity Act 2005 defines mental capacity in terms of the ability to remember, understand and weigh up relevant information and communicate wishes. The law has always presumed that everyone has mental capacity unless proven otherwise. If a person does not have a living will and becomes mentally incapable then doctors will determine their treatment according to what they consider is that person’s best interest. Doctors will consult a patient’s friends and relatives but are not bound by their wishes. Ultimately, if there is a dispute, doctors or relatives may apply to the High Court for a judge to make the decision. Some high profile and controversial cases have involved court orders to stop artificial hydration and nutrition or resuscitation attempts so that the patient dies. It is very unsatisfactory, however, for the courts to have to be involved in these decisions.
If there is a living will, health professionals will normally be bound to follow a patient’s previously clear instructions. If a health professional was to act against the clear terms of a valid living will then he or she could be guilty of professional misconduct, a civil wrong, or even a criminal offence against the patient, no matter how well intentioned the health professional was.
How to make a living will
Writing a letter to one’s doctor or even spoken instructions to doctors might be enough in some cases, but a person should write a formal living will if they want some certainty that their wishes will be followed.
While the safest but expensive option is to use a lawyer to draft your living will, there are plenty of resources in libraries and on the internet to help someone to do it for themselves. Resources include guides, specimen forms and model wording that can be used as appropriate. Any accurate guide for lay people will refer to the Mental Capacity Act 2005 which comes fully into force this year (2007). In particular it will mention the strict requirement of the Act (section 25) that if a person wants to refuse life sustaining treatment then the advance decision document must be properly signed and independently witnessed as a legal safeguard. If anyone has doubts as to the validity of a living will they should obtain professional legal advice.
It is important that before contemplating writing a living will you should try to become knowledgeable about the kind of treatments that might be provided in particular medical circumstances and the consequences of refusing them. It is also important that everyone is aware that there are some things that a patient can’t insist upon in a living will:
• You can’t ask a doctor to do something currently illegal in the UK such as euthanasia (mercy killing), though, as we have noted, you can ask for treatments to be withdrawn that would inevitably result in your death, whatever the reasons for your wishes.
• You can’t insist on a particular treatment or a medicine contrary to a doctor’s clinical judgement.
• You can’t prevent basic palliative pain relief, or basic nursing care such as washing, toiletting or feeding by mouth where still possible
• And you can’t expect to stop treatment in an emergency if your instructions could not reasonably be discovered or validated by emergency personnel.
A living will might not be legally effective unless it is clear and comprehensive, and it also needs to be regularly reviewed and kept up to date. A living will can fail to be legally binding if the writer did not contemplate a particular set of medical circumstances or treatment being available. It would also be a great pity if a living will became ineffective because it could not be found in time, so the living will document, more precisely described as an advance directive or advance decision, should be retained by one’s GP, in one’s hospital records and made known to any treating doctors. Trusted friends and family should also have copies and know about the will’s existence.
Health Proxies and Lasting Powers of Attorney
An alternative to writing a living will is to appoint someone else to make the health decisions on your behalf. The Mental Capacity Act 2005 will shortly make it possible for an adult with mental capacity to appoint someone to make legally binding personal welfare decisions (as well as the power to look after financial affairs) by a legal device that will be called a “Lasting Power of Attorney”. The person who will act in this way is often called a “health proxy”. The person appointed could be a friend or family member who has to feel able to take on the role at an emotionally distressing time. Obviously they must be people you trust absolutely, particular if they might benefit from your death. As a legal safeguard the Lasting Power of Attorney will have to be registered with the government’s Public Guardianship Office. A lawyer’s advice should be sought.
Changing a living will
While a person is still mentally capable they will be able to change their living will and health proxy, at any time, but they should destroy out of date documents and tell doctors, friends and family of the change.
Resources
Useful search engine key words include “living wills”, “advance directives”, “advanced health care directives”, “advance decisions”, “health proxies”, and “The Mental Capacity Act 2005”. The following professional and charity bodies have websites that contain useful resources, though exact webpage addresses have not been provided as these might be subject to change.”
The British Medical Association
www.bma.org.uk
The Patients Association
www.patients-association.org.uk
The Voluntary Euthanasia Society
www.ves.org.uk
The Alzheimers Society
www.alzheimers.org.uk
Age Concern
www.ageconcern.org.uk
Guidance and model wording is contained in that valuable resource, the Natural Death Handbook (4th Edition, ISBN 9781844132263) Chapter 2 page 34 to 42. See the front page of this section for more details.
