Advance Directives – Use of and Effect

Hello. Welcome, everybody Monami stuff to my mood on dumb, very pleased to welcome you to today's bite side session whereby today, looking at the issue at surrounding advance directives, they use Andi effect in particular. So this has being looked at as of August 2000 and 17. Onda with this certain bites high session when I'm going to be going through with you first and foremost, he's giving you a bit of indication as to what advance decisions are sometimes referred to. His living wheels will be looking at, for example, the instruction directives and also the refusal directives on also, look in our tissues surrounding life sustaining treatment. I'll be taking you through somebody major case law in this field also to bring you up to speed with, really, where they wear the grand lives. And so far, city. The case law is concerned. So really, to start off with this advanced decisions, sometimes loosely refer to as living wills, you'll find that these have been by the very nature of a controversial in nature, both ethically, philosophically and also legally in many respects. Andi, that's right. Take off off thes hasn't perhaps being as great as what you may anticipating in other types of wheels, for example, wheels that people make, which they wish to take effect upon their death. For example, Andi, many of you may remember that when we have the the hills with disaster some years ago, there was the very significant case which followed on from that involving a gentleman by the name of Tony Blend Antony blend. And that's where we had the case of Adele Trust Against Blend, You might remember. That's the case which looked up issue surrounding whether or not the family, uh, could request that the life support machine could be switched off in relation to Anthony Blunt. And the court did authorize that on the basis that they could enable such a decision to be made on the basis it was withholding life sustaining treatment or ending life sustaining treatment in all circumstance and therefore effectively passive euthanasia, as opposed to active euthanasia, were by your Atchley through an active part bringing about somebody's death. And really you'll find that many of these cases over the years have really looked at the benefit on the purpose off advance decisions or living girls as we like, say loosely referred to them as such a living will. This is not in fact will in any accepted sense in that regard. It's not a trans decision isn't a something that will take effect upon that person's death, but more so when they lose their capacity to be able to make decisions for themselves in so far as they there, health care is concerned on a defectively. What an advance decision is is a statement made by somebody when they are in a position where they do have mental capacity about their preference for medical treatment in the event of them becoming incapable, off making. That's a decision themselves on. That may be in a situation where, even though they may have capacity to make that decision on able to communicate a treatment decision in certain situations. Now, this is where these instructions that people can provide waas they still do have mental capacity as defined within the mental capacity after 2005 can take two forms. There's different types of statements. The first is what's called an instruction directive, which is one which sets out the type of treatment that that person would require self example if they were to get into a state where they are incapable of making a decision from sums. What type of treatment would they seek to receive in those circumstances? And then there's also what's known as a refusal directive, which really sets out a type of treatment they would not wish toe have indoor circumstances on, therefore enabling somebody done appointed by them to make decisions on their behalf. So that could take the form of somebody who was, for example, in a persistent vegetative state, as a result of, say, an accident or trauma enabling somebody then too effectively carry out. They refuse of directive in so far is refusing to have life sustaining treatment. For example, Onda healthcare professionals, you find they may, of course, treat the patient without consent where that treatment is necessary on in that person's best interest, but with an advance decision or living will at this is where somebody who's 18 or over waas this to love capacity, of course, can then ah, I have one of these documents drawn up for them to refuse specified medical treatment for sometime in the future, when they then lack capacity to consent. Otherwise, tooth out treatment That's very important to ensure that any advance decision that he's prepared by by a lawyer, for example, must be seen to be valid and applicable to dollars particular circumstances. So it's very important, given the controversial nature of these, to ensure that the advanced decision is very clear on particular, insofar as the type of decision that needs to be made in relation to that child's hurt, that person's health and really health decisions. If there is any, um, big Ritan, like you tend to find a court will favor most construct more faith for preserving life, as opposed to ending life in those circumstances. Now, as I said, people can only make an advance decision if they are 18 or over, and they have the capacity to make the decision that needs to set out what type of treatment they refuse. They can, of course, canceled a decision at any time thereafter. One thing which is very important is if a person wishes to have an advance decision made which refuses life sustaining treatment, then this is where the advanced decision must be in writing can be made by somebody else recorded in, say, the patient's health care nodes, for example. But it's got to be writing, given the nature of it, and it's got to be signed and also witnessed on it has to be made very clear. That decision that they have made applies even if for life is at risk. Even if their life is at risk indoor circumstances, it can see how important it is to ensure that if there is going to be any refusal for life sustaining treatment, that this is made very, very clear in the result of what you find is some of you will be involved in assisting clients in drafting these documents. Some of you may be advising local authorities and health workers in relation to whether or not the advanced decision is to be certainly accepted or not. And that's where there could be some conflict between the actual drafting of a document on where they would likely to be effective in so far as the base upon which it was drafted. Now, this is where there's been a fair bit of case law in this field over the years, and what you'll find is with these types of situations we have to first off first, ask ourselves. Does the act actually permit advanced decisions to actually be made? And this implants, that is, yes, you've got the mental capacity of 2005 sections 24 to 26 of the act in particular sets at the statutory basis. Section 24 of the act in particular, provides that in advance. Decision is a decision made by person after they have reached the age of 18 and when they have capacity. So to the effect that you felt to later time on such circumstances as that may specify, a specified treatment is proposed to be carried out or continued by person, providing health care for him or her on at that time, that person lacks capacity to consent to carry out or continuation of the treatment. The specified treatment is not to be carried out or continued indoor circumstances. That's the specific provisions set out within Section 24 subsection one off the Mental Capacity Act of 2000 and five. Now, as I mentioned with advanced decisions, thes can be in writing or indeed, it could be made for Blake. But as I mentioned, if the advanced decision is to especially five, particularly life sustaining treatment that that must be in writing, signed by the maker on also witnessed indoor circumstances. As I mentioned, when the person has an advance decision made for them, it's very important to ensure that the lawyer who prepares this in many cases for a client is satisfied that the person had the requisite mental capacity to make this in the first instance. So this is where you have to be satisfied that sections to in Section three of the Mental Capacity Act of 2005 were complied with. Did they have the mental capacity to make the advanced decision on this is where, in particular, make sure you're familiar with Section one of them and capacity Act i e. They are presumed to have capacity unless it's proven otherwise. Just because it makes decision which may be seen as unwise. That doesn't necessarily mean that don't have capacity. You need to ensure that they have order necessary steps provided to them to enable them to communicate their decision. Don't second stances. Okay, so there is this very much dis notion that Section one provides that the president deemed to have capacity unless it's proven otherwise on that this is where cases like re be adult refusal of medical treatment. Just 2002 case is very important. This is one were paid. A patient was kept a life over year against her wishes. On the question was that she did have capacity to consent in the circumstances. So this is where the matter, in fact, came before Dame Elizabeth Butler Sloss, who took the view that a presumption off capacity is there under Section one of the Mental Capacity Act on def mental capacity is not an issued and patient can choose and if there is doubt, thesis where the matter would need to be resolved, possibly so over court proceedings if need be. But until the matter is his old by the court, then the medical team are responsible for acting in Dump Person's best interests in those circumstances. Andi, you'll find out with many of these situations if there is there fore going to any doubt as to whether or not the document is to be upheld or not, then you tend to find that there will be a decision make made that one should constrained favor of preserving life and therefore not upholding the advanced decision in those circumstances. Now the other case is the ST George's Healthcare NHS Trust on S case and our colleagues and others. This was this 1999 case on that. This is where some very useful guidance was given by the year quarter. Appeal in particular saw, For example, there's a presumption that patient has the mental capacity to make decisions, whether to consent or to refuse to medical surgical treatment, which may be offered to them if mental capacity is not an issue on. But once the person has been given a relevant information. If they choose to refuse to treatment, then that decision needs to be respected by the medical team into circumstances. If there is concern and doubt about the person's mental capacity and of course, that that should be resolved as soon as possible on this is where the medical team on touch them to treat using normal medical procedures. In the second chances WAAS. That issue is being resolved. Eso waas decisional capacity has been resolved. A patient must be really looked after in accordance with what's regarded in their best interests on if they are difficulties in deciding whether the person does that does not have mental capacity, particularly to refusal, does have consequences which may result in death then. This is where there may be a need to certainly ensure that the doctors allow decisions to be taken, which certainly ensures that their best interests are expected. But the decision as to whether or not dead life is to be continued or not in that situation is with this is resolved as early as possible on dumb what Sometimes what you find is seriously disabled patients who is maybe the mentally competent situation. The same right would apply them to personal autonomy as any other person who has mental capacity. So the fact that somebody's physically disabled, for example, doesn't mean that there won't necessarily a mental capacity to be able to make decisions indoor circumstances of a very important to bear that in mind. Also now, the other case of High H E against a hospital NHS trust is also very useful because this reminds us this 2003 case that there are no formal requirements or valid out of funds, directive and advance directive, maybe in writing, going maybe evidenced, but really, But of course, if it's to do it life sustaining treatment than that itself must be in writing on grants Directive, this case held is inhabited revokable on. Therefore, very important for allowing a person to end it on the existence. And continuing validity and applicability of advance directive is a question of fact. In the circumstances, the burden is on the person who wishes to establish the existence and continued validity of the advanced directive to prove that in circumstances where there is doubt in the circumstances, it can see its very important. If you are involved in drafting these documents to make sure that these drafted very carefully with that in mind. And this is where you'll find that if you are involved in drafting these documents, number half clients, then that many precedents available for you to utilize in these circumstances, and with many of these, you find out the president's will cover, For example, situations related commencement date, the conditions which will judge we set out the activation off the year. You don't advance directive, for example, and also in attestation clause at the end, very much in line with what you have will may have in relation to a will for example, eso At the beginning, you may find that will be the name of the person they're address setting out, for example, that if they were to become incapable by reason of mental capacity or conscience, that's all unconsciousness, for example and therefore remain up in a position to make an informed decision regarding the health care. Then this is where they would set up specifically that if they, for example, sustained saying incurable and irreversible illness, disease or condition which is like to result in death at their death in a new future, or if they become, for example, permanently unconscious. In the opinion of perhaps at least one independent practitioner, uh, day off the view that they have irreversibly lost consciousness, for example at all, for example, have to suffer from incurable and irreversible illness, disease or condition, which is likely to end in impermanent, incapable of making their own decision especially incompetent wishes. The indoor circumstances. The may set out the fact that they would wish for life sustaining treatment as well as any artificial nutritional hydration to be withheld or discontinued. Indoor circumstances on this is where it's very important for the advanced decision to set up the fact that there is any doubt in relation to the circumstances than they would wish to make clear very much in the advanced decision that they would not wish to receive, for example, resuscitation to feeding or hydration indoor circumstances. And if there is any doubt, sometimes you find the advance directive we set out specifically referred to a reference to be made to their GP, for example, under or family member who can then be consulted asses to their wishes in those circumstances. And this is where the actual advance directives should then be signed should be dated a North so witnessed in all circumstances. Now, this is where you'll find that the Mental Capacity Act 2005 sets out to provision allowing for advanced decisions to be made. It is also at the corner practices where which is very useful, insofar as enabling lawyers, too certainly comply with a number of issues about in showing that clients have made fully aware off the sheer nature of advanced decisions, the fact that they will obviously have significant consequences and making sure that clients are made aware that they can revolt ease attendee stage indoor circumstances on thistles where you find out many firms a swell. It's, for example, drafting se lasting parts of turning, which makeover property and affairs and also health and welfare decisions may also, in addition to that, also be providing advice in relation to the position with advance directives. Also in these circumstances now, one of the other things to bear in mind is that with the validity of these, you've got, for example, section 25 d mental capacity up to 2005 which does say that these as long as they appropriately drafted and they're clear, the's will be valid and applicable on healthcare. Professionals, therefore, will be obliged to follow these in the circumstances, but there won't be violated. For example, a person who has had made for the most withdrawn this off example. Let's say an advance decision was made today and say six months later, somebody made a lasting power of attorney covering health and welfare, which was different to what the advance directive is to provide for inciting situations. That's where, by implication, the lasting power of attorney covering the health and welfare would actually suit, proceed and therefore effectively you folk. The advanced decision given it. Conflicts with that also bear in mind that the advance decision director will not be applicable if the proposed treatment is not the treatment as specified within it. So that's why it's very important to ensure that the drafting is very clear in that regard ordered. The circumstances in it are absent in the circumstances and so far is what we mean by life sustaining treatment. If you have a look at Section four, Subsection 10 of the Mental Capacity Act, this defines life sustaining treatment as that which, in the view of a person providing health care for the person concerned, is of the view that it's necessary to sustain life in the circumstances and like a safe, life sustaining treatment is to be withdrawn. And it's very important to ensure that the advanced decision specifically provides for that. That's got to be right. It's got to be signed. It's got to be witnessed. If the formalities are not complied with than that. Advanced decision, as I mentioned, is unlikely to be upheld in the circumstances. For the reasons that we've said on one of the other issues to work to bury mind with this is just like a well. For example, the advanced directive will include, for example, introductory matters, the name of the person. They're address, a record of discussions. They had a date capacity issues confirming they have capacity at the material time circumstance in which they actually wish for and to apply. For example, the treatment to be covered. Body Advanced Decision. The reasons for the decision White is that have decided the way they have any other wishes is specifically setting out a position, life sustaining treatment. For example, if there is going to be any doubt as to whether the advanced decision is to be followed, not reference to who is to be consulted, whether it's a GP, whether it's the consultant, whether it's a family member and also the position would, for example, signature on also gaining tested India circumstances so considers a number of key. She's there now, like any document, whether it's a will or lasting poverty, any otherwise, it's very, very important for declined to, then make sure that being form other people that have had an advance decision made sort. Of course, if there were to be involved in an accident, for example, on one thing then one will be aware that have actually gotten advanced decision, which sets out their position so very important to ensure that this document is set out within any medical medical records, for example, that health care workers are made aware of this and also their family indoor circumstances as well as the attorneys under any lasting perv attorney covering health on welfare like, say, these documents can be set aside that can be cancelled very easily, but very favor important to insure that the client is clear, that they need to really keep these under review indoor circumstances. One of the things that advanced decision cannot be useful is, of course, for active euthanasia, as I mentioned, and also demanding particular types of care in the circumstances. Also, this cannot be used to refuse food and drink by mouth. On also refusal of comfort measures on basic nursing care for examples of very important to bay that in mind. One of the other issues to bear in mind is the advanced directive cannot be used to refuse treatment from mentally sort of for person detained under the Mental Health Act 1983 for example, so that allows compulsory detention for purposes of assessment under section two and section three for the purposes of treatment, for example. So advanced decision cannot certainly refute. Allow refusal, indulge circumstances so favorite very important, too. Bear that in mind. Okay, So I hope today's giving you some useful information insofar as advanced decisions. What? They are hardly apply in these circumstances. And also they use on defective the second stances. Hope does be very useful for you. Can I thank you very much indeed for listening. And I speak to you next time. Thank you. Bye for now.