Advance decisions and Lasting powers of Attorney
Advance decisions and general statements (‘Living wills’)
‘Living will’ is non-technical legal term used to refer to different things. It is sometimes used to refer to a general statement of a person’s wishes should they lose mental capacity in the future or else to an ‘advance decision/directive’ which is more official.
Both ‘general statements’ and ‘advance decisions’ are ways of expressing in advance wishes about medical treatment for a time in the future when someone may not have the mental capacity to refuse or consent for him or herself. However, both of these options do have limitations.
- A general written statement is not legally binding and so, although health professionals have to take it into account and it could be used as evidence of your wishes, it could be overridden and this would almost certainly not be open to challenge.
- An ‘advance decision’ is more enforceable; provided it is valid and applies to the proposed treatment, it has the same effect as a refusal made by a person with full capacity. However, an advance decision is used to state your wishes in advance and it is not a tool by which you can nominate someone else to decide about treatment or care on your behalf. In addition, it only provides for a person to refuse treatment, it does not confer any positive right to receive a specific treatment.
Lasting Powers of Attorney
An LPA grants authority to the attorney to manage your affairs (i.e. make your decisions) on your behalf. There are two types of LPA – one which deals with financial and property matters and another which deals with personal welfare issues (such as where you live, what care you have and what happens to you if you are unwell). A personal welfare LPA can include issues of medical treatment and/or daily living decisions.
Your attorney can only make personal welfare decisions on your behalf once the LPA has been registered with the Office of the Public Guardian (OPG), and when it is established that you lack mental capacity to make the decision for yourself at that particular time. This is different from a property and financial affairs LPA that could be used whilst you still had capacity.
In order to be effective the LPA must be registered with the Office of the Public Guardian. Either you can register the LPA whilst you still have capacity or your attorney can apply to register the LPA at any time (e.g. at a time when they think you are losing capacity to make decisions for yourself).
Coma Patient Research
Advance directives and living wills will ensure that your wishes are known when you are unable to speak for yourself, for example if in a coma. Recent studies have raised a real possibility that patients may sometimes have functioning minds while being classed as in a vegetative state.
There have been difficulties in distinguishing between coma patients who are in a ‘minimally conscious state’, who show some signs of awareness and are kept on life support indefinitely, and those in a ‘vegetative state’ whose life support could be turned off at any time.
A study published in BioMed Central Neurology in 2009 suggests that doctors prefer to use intuition rather than the latest diagnostic techniques and as a result some patients are incorrectly diagnosed as being in a ‘vegetative state’. In a study by the Medical Research Council’s Cognition and Brain Sciences Unit at the University of Cambridge a man presumed to be in a vegetative state was able to communicate with researchers by thought alone, displaying intellectual activity.