Media interest in Court cases involving end-of-life treatment remains intense and more than ever we are made aware of the complex legal and ethical questions involved.
Many people feel strongly that they would not wish to be kept alive in circumstances where there is no hope of recovery and no quality of life, but is there anything which can be done to prevent this happening?
There are two options you can consider:
- A Health and Welfare Lasting Power of Attorney LPA (HW)
- An Advance Direction Refusing Treatment (ADRT)
Lasting Power of Attorney LPA (HW)
An LPA (HW) allows you to appoint a trusted person (your attorney) to make decisions about your health and welfare in circumstances when you are unable, due to mental incapacity, to make a particular decision yourself.
You can elect, when making the Lasting Power of Attorney, to authorise your attorney to make decisions about life-sustaining treatment. If so authorised, your attorney will be able to consent to or refuse life-sustaining treatment on your behalf, acting at all times in what they consider to be your best interests.
In addition, an LPA (HW) allows your attorney to make decisions about a wide range of non-medical issues concerning your day to day care, including where you should live, who you have contact with and the sort of community care services you receive.
In order to be valid, an LPA must be made in the prescribed form and registered with the Office of the Public Guardian.
Advance Direction Refusing Treatment (ADRT)
An ADRT is more limited in its scope and applies only to medical treatment. By making an Advance Direction Refusing Treatment, you are stating in advance that you want to refuse certain specified treatment in the future, even if that refusal results in your death. An ADRT which purports to refuse life-sustaining treatment must be made in a prescribed form in order to be valid and enforceable. It does not have to be registered.
An Advance Direction Refusing Treatment will usually set out the circumstances in which it is to apply (eg in the event of terminal illness or persistent vegetative state) and specify the types of treatment to be refused or withdrawn. Discussing the contents of any proposed Advance Direction Refusing Treatment with your doctor in advance is to be recommended, as there are certain treatments (eg antibiotics) which may save life in some situations but which are regularly used to treat non-life-threatening conditions.
Doctors treating a patient who has made a valid ADRT must respect the patient’s wishes, provided the ADRT is applicable to the particular circumstances which have arisen.
There are no circumstances in which either an LPA (HW) or an ADRT can authorise the taking of positive steps to end life (assisted suicide). Likewise, an ADRT cannot be used to refuse basic care (warmth, shelter, cleanliness, food and water by mouth, pain relief) to a patient who lacks mental capacity.
LPAs and ADRTs have slightly different roles to play and you may feel that either one or the other is most suitable for your needs. However, it may sometimes be appropriate to have both. For example, an Advance Direction Refusing Treatment made in addition to an LPA can be useful as a “belt and braces” option, in case your attorney cannot be contacted at the crucial time when a decision is needed.
If you choose to have both, the Lasting Power of Attorney should be made first (but bear in mind that insofar as the ADRT conflicts with the LPA, the attorney’s powers may be restricted).
For further advice on Lasting Powers of Attorney, Advance Direction Refusing Treatment and related matters contact rhw’s Private Client Team.