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Advance Directives - Lecture Notes 22/1/2020

Kirsty Moreton

An advance directive is a statement in advance that a competent patient makes, to influence the nature of the treatment they receive.

An advance directive is a group of ideas:

  • Healthcare Power of Attorney,
  • Do No Resuscitate
  • Donor Registry/Enrollment Form
  • "Living Will"/Advance Decisions

Are all forms of advance directives

Lasting Power of Attorney

These, where someone has appointed someone else to take on decision-making for them when they lose capacity to do so.

This allows the person who knows you best to make decisions for you, allowing appropriate weight to your belief.

There are two standards:

  • Substituted Judgement (USA, not UK)
  • Best Interests (UK)

Substituted Judgement

the proxy puts themself in the patients shoes and makes the decisions as if they were them.

Some problems come up, how well can you know the person, and their views?

And what if other people disagree that the patient would have wanted that?

Best Interests

the proxy would consider to be best for the patient under all the circumstances.

In the UK, the lasting power of attorney wont give the person the final say! It does in the US but not in the UK. It gives weight for the person representing their relative.

Mental Capactity Act

This is where you get LPA's legally in the UK - Section 9-11

In s4(5) - the person making the best interests decsision cannot be motivated by a desire to bring about his death

The person with the LPA should be consulted and their views should have significant weight.

The person making the LPA and the person with the LPA must be > 18

An LPA cannot be authorised to do something intended to restrain the patient unless 3 conditions are met:

  • the patient lacks capacity
  • it's necessary to prevent harm
  • it's a proportionate response

Restrain

means use or threatening to use force, restricting patients liberty of movement

(so not just like in health care emergency holding down. Also care homes etc)

Section 11 (7) - if an LPA is made, they are held to what an advance directive already says. The advance directive holds precedence over an LPA

Advance Decisions

An advance decision does not have to be written, it can be oral. (the problem then is evidential - where's the proof?)

A capacitous advance decision is legally binding to refusal of treatment.

It's only refusals that are legally binding. Not demanding treatments.

Advance decisions are not valid for treatments of mental disorders. The mental health act still stands

F v West Berkshire

This is the case that establishes that a person can say they can refuse treatments

HE v A Hospitals

A jehovahs witness advance decisions case.

A dad of an adult with advance directive refusing blood, went to court to get her blood.

The court granted that, saying that there wasn't proof that this AD was still valid, and that if life was at risk, we should resolve in favour of preservation of life.

This has created an assumption that an AD is almost only of worth when you can prove it is.

So common law was left open. This position was criticised by some (Heywood). Some of this was then addressed by the mental capacity act

Burke v GMC [2006]

Was a case attempting to compel doctors to treat patients

Did fail at appeal.

Mental Capacity Act 2005

Making AD

This is where AD's come in

The person must be 18, must have capacity, must have the treatment and the circumstances, and that it is to be freused

It can be in laymans, it can be withdrawn or altered at any time. This can all be oral rather than written. But again you need proof.

Validity of AD

Needs to be valid and applicable

Isn't applicable if the patient has capacity, has applicablty over the LPA

Itsnot valid if it doesn't reflect the treatment suggested, or the circumstances suggested, or if the circumstances weren't anticipated by the patient

Life Saving

They patient needs to state they recognise that they are refusing life sustaining treatment, for an AD on life saving treatment to be valid.

These ones HAVE TO BE IN WRITING

Has to have a refusal of treatment in keeping that they have refused life saving treatment.

If an AD is in front of you and is valid and applicable, it's as if the person is in front of you.

But nothing in an AD would stop someone going against it, whilst they were seeking a decision from the courts.