A new kind of living will
Authors: M. Irwin
Journal: Journal of the Royal Society of Medicine (2003)

Four years ago, when giving a talk about living wills, I stressed that such wills could express the wish to stay alive with life-prolonging measures for as long as possible. In 1999, I was the Vice-Chairman of the Voluntary Euthanasia Society, and, since then, VES has been gradually developing this idea of a living will that offers a choice.

The term living will was first used in 1969 by an American lawyer, Louis Kutner. The document is a ‘will’ in that it states a person's wishes. And, it is ‘living’ because it takes effect before death. In the past, the typical living will (also known as an advance directive, an advance refusal, or an advance statement) has only allowed patients to refuse medical interventions or treatments which were aimed at prolonging or sustaining life. Opponents of living wills have condemned such documents as ‘suicidally motivated refusals of medical treatment’. The VES has now produced a new living will that can be used equally well by those who want medical treatment to be given to prolong their lives for as long as possible. This new document (www.ves.org.uk) demonstrates just how concerned VES is to ensure that all citizens should be able to choose the right treatment options in the event that they lose the mental capacity to be involved, with their physicians, in making such medical decisions about themselves.

The essential section of this new living will is the following, in which two specific circumstances are described. One is an ‘Imminently life threatening physical illness from which there is little or no prospect of recovery’, and the other is a ‘Very serious mental impairment with no prospect of recovery together with a physical need for life sustaining treatment’. For both situations, an individual has to choose between ‘I wish to be kept alive for as long as reasonably possible and consent to all appropriate medical treatment’ or ‘I refuse medical treatment aimed at prolonging or artificially sustaining my life. I consent only to medical treatment whose aim is to keep me comfortable and, so far as possible, free from pain. I refuse all other medical treatment’.

Another important section of this new variant of the living will allows for the naming of a ‘health care proxy’, where this individual has to sign that he/she agrees to assume this role. In Scotland, health care proxies are known as welfare attorneys and these people are recognized under the Adults with Incapacity (Scotland) Act 2000 as having the legal power to make decisions on someone's behalf in accordance with what that person's specific wishes would have been. In England and Wales, proposals are being discussed that should clarify the legal status of a health care proxy.

Who benefits from a person writing a living will? Mainly, of course, it is the patient and we are all patients sooner or later. Then, doctors benefit since they no longer have to guess what a patient would have wanted. And, thirdly, family and friends have documentary evidence of a person's wishes. This living will can generate useful discussions between the person making the will, the general practitioner and the family.

Various authorities can be cited in support of living wills, ranging from the Lord Chancellor, Lord Irvine (in 1998, writing that they have ‘full effect in common law’) to the BMA (in 1999, stating that ‘where a patient has lost the capacity to make a decision but has a valid advance directive refusing life-prolonging treatment, this must be respected’). Then, in 2002, the General Medical Council noted ‘Adult patients who have the capacity to make their own decision can express their wishes about future treatment in an advance statement’. In the United States a federal law stipulates that, upon admission to any hospital receiving federal funds, a patient must be asked if a living will has been signed. In Denmark, a centralized computer records the details of everyone who has signed such documents. And, in Israel last year, the Health Ministry accepted a recommendation to have a similar computerized database established in that country.

All responsible adults should have made a regular will stating exactly where their financial assets and possessions will go. And, I believe, all medical and nursing personnel should make a living will, setting an example for others to follow, because this could be of great assistance someday to their personal doctors, family and friends.