WILLS AND PROBATE SUPPLEMENT
Living wills—the dilemma
Ashley Irons considers the legal minefield surrounding the capacity to make valid advance decisions
n the Mental Capacity Bill—reinforcing case law n advance decisions vs best interests have been fully informed about treatment options and implications. They must also not have been influenced or harassed by anyone else when preparing it (the same applies to proposed lasting powers of attorney, above). Also, there must not have been a modification of it later. Section 24.5 states: “It will not apply to life-sustaining treatment unless the directive very specifically applies to such.” To be valid, the person must not have acted in a way, since the advance decision, that clearly demonstrates that his views became inconsistent with it. The ministerial foreword may have had in mind the High Court case of HE v a Hospital NHS Trust which the Family Division heard on 7 May 2003. The patient was a Jehovah’s Witness, and in 2001 signed an advance directive refusing blood transfusions. Subsequently, she became seriously ill and as she left home stated that she did not want to die. The court granted a declaration that the treatment, including blood transfusion, was lawful. They took into account that she had been in hospital for two days without mentioning the advance directive, and had said she did not want to die. Her actions were consistent with having ceased to become a Jehovah’s Witness (she had decided to convert to Islam, having become engaged four months previously). Munby J summarised the law as it stands, by saying that there were no formal requirements for a valid advance directive and it did not need to be in writing. Nor was there any particular procedure to revoke one. Whether there is a continuing valid directive is a matter of fact, and the burden of proof “is on those who seek to establish the existence and continuing validity and applicability of an advance directive”. However, “where life is at stake, the evidence must be scrutinised with especial care. Clear and convincing proof is required. The continuing validity and applicability of an advance directive must be clearly established by convincing and inherently reliable evidence. If there is doubt, that doubt falls to be resolved in favour of the preservation of life”. These words will also be relevant to the determination as to whether a lasting power of attorney or an advance decision (under the Bill) is valid. Potential issues What if a decision is made to respect an adNEW LAW JOURNAL 25 June 2004
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he ability to make a decision in advance to refuse treatment has long been contentious. The draft Mental Capacity Bill intends to put into statutory form much of what currently exists as a result of case law. It also has specific provisions to enable valid advance decisions, or “living wills”, to be made. While there will be an ongoing debate as to the implications of the Bill, far less attention is given as to how earlier treatment decisions can be validated. The overriding principle has always been that a mentally competent adult is entitled to refuse treatment. Most of the cases on the subject concern arguments over whether the patient has capacity or not—not the right to make a treatment decision. Case law The case most commonly quoted is that of Re C (1994), where it was held: “An individual is presumed to have capacity to make a treatment decision unless he or she: n is unable to take in and retain the information material to the decision, especially as to the likely consequences of having or not having the treatment; or n is unable to believe the information; or n is unable to weigh the information in the balance as part of the process of arriving at the decision.” Another way of looking at it is in the case of Re MB (1997): “Unable to engage in a rational discussion about treatment.” The Code of Practice to the Mental Health Act 1983, states at para 15.11: “To be valid, an advance refusal must be clearly verifiable and must relate to the type of treatment now proposed.” It is this sentiment that concerns all types of patients, relatives, hospitals and lawyers. Where a patient does not have capacity, a hospital can act in the “best interests” of a patient, provided it is necessary and in line with the practice accepted by a reasonable body of medical opinion skilled in that particular form of treatment (per Bolam and Bolitho). 966
Key aims The Mental Capacity Bill intends to give greater authority to those wishing to make treatment decisions in advance. The Bill is intended to assist those suffering from dementia, learning disabilities, schizophrenia and manic or serious or clinical depression. The ministerial foreword continues: “All of these people will probably need some decisions to be made on their behalf at some point. The current law is not as helpful to carers and professionals as it could be. About one adult in seven in the UK cares for another adult—nearly six million carers in all.” The ministerial foreword estimates that over 700,000 people in the UK currently suffer from dementia; 145,000 adults have severe and profound learning disabilities; over 1.2 million have mild to moderate disability; and, “at some point in their lives, approximately 1% of the UK population will suffer from schizophrenia”. Lasting powers of attorney The redraft of the Bill is likely to state at the outset that there will be a presumption of capacity. Significant departure from the present position is the creation of a lasting power of attorney (s 8). For the first time, personal welfare can be included within such a power, so that the donee has the authority to act and make a treatment decision that the donor could have done, if he or she had capacity. The formalities are set out in the Bill, including registration of specific forms. Advance decisions to refuse treatment Any treatment carried out against an “advance decision” will be unlawful for lack of consent. A valid advance directive must be followed by clinicians, so long as it is validly created and refers to the particular situation that has arisen. Currently, the advance decision must have been made by somebody with capacity, aged over 18. As always with treatment decisions, appropriate information upon which a treatment decision is based must have been given. The creator of the decision must therefore
WILLS AND PROBATE SUPPLEMENT
vance decision, as a result of which someone’s health deteriorates, possibly resulting in a patient’s death? How are clinicians expected to be able to verify the circumstances in which a lasting power of attorney or an advance decision was made? It is clear that it will be almost impossible, especially if it was made a long time previously. Imagine this scenario in a coroner’s court—the hospital was able to save the life of someone, but did not do so out of respect for what was considered to be a valid advance decision to refuse treatment. Those representing the family will be asking whether clinicians ever had any satisfactory evidence as to its validity, to the extent that it could be positively established. Those in the witness box will also be asked what evidence they had as to capacity at the time of the decision. In other words, the hospital could also be found to be in breach of its duty of care, unless the validity of the decision can be demonstrated. It is extremely hard to imagine how a hospital could possibly reach this threshold of evidence unless, perhaps, the power or direction was made when the patient was in hospital. In other words, when somebody comes to hospital for an operation, the hospital takes the opportunity not simply to confirm capacity, but to ensure ample information is given to the patient so that he completely understands the potential consequences of the decision. In the case of the lasting power of attorney, how is a hospital to determine whether there has been any undue influence? Lawyers have a habit of looking at the worst case scenario—here, it is all too apparent. Fortunately, most decisions are not life and death matters, but some will be. The overview of the Bill states that there will be a “general authority that makes it lawful to act for someone who lacks capacity, where it is reasonable for the person taking the action to do so and the act is in the person’s best interests. No formal powers are necessary”. A best interests checklist is set out in s 4. In other words, the problems facing lawyers and their clients will not simply be capacity, but also the understanding of the patient at the time of the decision and what information was then available. Would, for example, that person have decided differently if aware of advances in treatment that might lead to a better quality of life? Modest progress towards treating Alzheimer’s is a case in point. The Bill gives no comfort at all to hospitals. Section 25 states: “If P has made an advance decision which is valid and applicable to a treatment, the decision has effect as if he NEW LAW JOURNAL 25 June 2004
had made it, and had had capacity to make it at the time when the question arises, whether the treatment should be carried out or continued.” Some help will be derived from s 25.3: “A person who withholds or withdraws any treatment from P in the belief that a valid advance decision is applicable to the treatment, is not liable for the consequences of doing so if his belief is reasonable.” For a belief to be “reasonable” there must be evidence to sustain it, otherwise it cannot be reasonable. Furthermore, clinicians can look forward to the type of cross-examination that arises out of the above case of HE v a Hospital NHS Trust.
“The hospitals’ dilemma will be between respecting an advance decision on the one hand, and giving treatment because of ‘best interests’ on the other”
There is every reason to suppose there will be conflict between those who wish to respect an advance decision and those who do not. It is likely that declarations will be sought from the Family Division with greater frequency than at present. This is likely to be because hospitals will be unable to obtain evidence that convinces them that the directive is valid. Their dilemma will be between respecting an advance decision (and risking a neglect claim) on the one hand, and giving treatment because of “best interests” on the other (and facing a claim for assault or breach of direction). Even the Constitutional Affairs Minister, Lord Filkin, appeared to anticipate this difficulty when he said: “I want to give people who fear they may lose capacity, the choice of refusing treatment—just as people with capacity do—but I want them to take this decision, understanding their medical condition and what treatment might be available.” Ashley Irons is a mental health specialist at Capsticks Solicitors. Email: airons@capsticks.co.uk
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