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Living Wills – who knew?

Posted on 8th December 2017

This week, a significant award was made to the family of an 81 year old woman who was kept alive by a hospital, against her will. This case highlights the importance of not only making a valid living will (if you feel strongly about the issue), but also making sure the relevant people are aware you have done so.

Brenda Grant made a living will expressly stating that if she suffered from any of a list of medical conditions, she should not be given treatment to prolong her life. As part of that, she said that she didn’t want to be fed artificially. In 2012, she had a severe stroke, leaving her incapacitated. This was a condition that was anticipated by her living will, but the hospital had misplaced her living will and she was fitted with a feeding tube. It was only sometime later when her GP alerted the family to the existence of the living will and it was found by the hospital, they agreed to abide by its terms and remove the feeding tube. Mrs Grant died shortly after that, but it was nearly two years after the stroke. The family accepted an out of court settlement of £45,000 from the NHS trust who admitted that they had breached Mrs Grant’s rights.

Making your advance decisions or directives

‘Living will’ is the name the public know best but these instructions are officially known as advance decisions or directives and are a decision made now, to refuse specific medical treatment if you are have lost capacity to consent to it. An advance decision cannot be used to:

  1. Require a particular medical treatment;
  2. To refuse basic or essential care – which would include being given water or food by mouth but not by tube (which is considered to be artificial nutrition or hydration).
  3. Request illegal acts, like assisted suicide
  4. Refuse treatment for a mental disorder if you are detained under the 1983 Mental Health Act.

Where an advance decision is made on or after 1 October 2007 and meets the statutory requirements, it is effective as a refusal of treatment and so if a healthcare professional provides treatment that has been specifically referred to, they risk both criminal and civil liability.

The statutory requirements are:

  • That it has not been withdrawn by you while you still have capacity;
  • That you have not made an LPA for health and welfare that overrides it;
  • That you do not do anything inconsistent with the wishes expressed in the advance decision.

If you are refusing life sustaining treatment, the advance decision must also:

  • Be in writing
  • Be signed by you (or on your behalf at your direction)
  • The signature must be witnessed; and
  • Include a specific statement that the decision is to apply even if your life is at risk.

It is also possible to combine an advance decision with a health and welfare LPA, but this must be done carefully, to ensure that one is not negated by the other, inadvertently. A health and welfare LPA can cover many more aspects of your health and welfare than an advance decision.

Informing key people of your advance decisions

To be sure that your wishes and decisions are upheld, it is vital that the relevant people know that you have made one and are aware of its terms. This would include your GP, any other healthcare providers if you are getting specialist treatment and in most cases, your family or friends. You may decide to leave copies with all healthcare providers and possibly keep a note on you, that you have one and where it is – so that it can be found if the worst happens.

Our Wills and Probate Solicitors are backed by four decades of experience. Our legal practice and team of London Solicitors have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0800 437 0322 today.

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