The COVID-19 pandemic has highlighted the issue of life-sustaining treatment and choice, with many seriously ill patients requiring ventilators to survive.

Everyone has the right to refuse life-sustaining medical treatment, but difficulty arises if you have lost the ability or ‘mental capacity’ to make that decision at the time.

It is important to plan ahead to make sure your choice is heard. This is especially the case for those with dementia who are more at risk of losing mental capacity.

There are two legal documents that can ensure any life-sustaining treatment decision made on your behalf reflects your personal wishes:

  1. a welfare power of attorney; giving another person the authority to decide on your behalf (instead of healthcare professionals) and;
  2. an advance directive, which expresses your wish in advance to refuse medical treatment in certain situations.

Both documents are extremely important and are commonly prepared together. Advance directives can be completed almost immediately.

See our previous article for further information on Powers of Attorney.

What is an Advance Directive?

An advance directive (also known as a living will) is a legal document that lets your family, carers and other healthcare professionals know whether or not you want to refuse specific treatments in the future in certain circumstances, should you not be able to communicate this yourself.

You can use an advance directive to refuse any type of medical treatment, but they are commonly used to address life-sustaining treatment decisions including (but not limited to):

  • being put on a ventilator or life support machine if you cannot breathe on your own
  • antibiotics for a life-threatening infection
  • cardiopulmonary resuscitation (CPR) if your heart stops
  • Artificial food or fluids e.g. via a drip, tube through the nose, or PEG directly into the stomach

Who can make one?

Advance directives can be made by anyone aged 16 or over, provided they have the mental capacity to understand the nature and extent of the decision being made.

Are they legally binding?

In Scotland, an advance directive is not legally binding. They are, however, highly persuasive and should be followed by healthcare professionals, particularly if prepared by a lawyer who can vouch for your capacity and intentions at the time of signing.

In England and Wales, advance directives (known as advance decisions) are legally binding, provided they comply with the Mental Capacity Act 2005.

The Law Society of Scotland has proposed that advance directives in Scotland should also be legally binding, provided certain criteria are met. It’s likely the law will be reviewed in this area.

How do you make one?

An advance directive should be made in writing, signed by you and in the presence of an independent witness.

It’s advisable to instruct a lawyer or medical professional to act as your witness. Ordinarily witnesses are expected to be physically present, however at the moment in Scotland, documents of this nature can be witnessed virtually, via video link for example.

There are five simple steps in completing an Advance Directive:

  • Carefully consider the circumstances in which you would wish to refuse medical treatment;
  • Instruct a lawyer to prepare your advanced directive, to ensure it is prepared correctly;
  • Your lawyer sends you the document ready for signing, and while on a video meeting with them, sign the document in their (virtual) presence;
  • Return the document to your lawyer, who can then sign as your witness having observed your signature;
  • Provide a copy of the advance directive to close members of your family, your welfare attorney (if you have one), your GP, and any other healthcare professionals involved in your care.