References
Critical evaluation of advance statements from patients lacking mental capacity
Abstract
Advance refusals of medical treatment present complex dilemmas with ethical, moral and legal facets. A competent patient may refuse any treatment, even where the decision may lead to an untimely death. The same holds true with respect to an incompetent patient with an advance directive made when that patient was competent and there is no reason to believe that the patient has changed his or her mind.
Advance statements arise from respect of patient autonomy and the introduction of The Mental Capacity Act 2005, which aims to provide consistently better protection and greater empowerment for vulnerable people and their autonomous rights.
This article outlines how the patient's right to choose in advance how they are to be treated if not competent to make his own treatment decisions is a positive development in the law. However, it may be of limited effect, as the majority of people will probably never make an advance statement. As a result, we should educate both patients and doctors about their rights in relation to medical decision-making, particularly as our increasing ability to prolong life makes decisions to terminate life-sustaining treatment more common. In order to respect patient autonomy, avoid harm to patients and reduce the risk to paramedics of civil or criminal liability, paramedics need to determine the legal validity of advance directives before making their treatment decision. In cases of uncertainty treatment decisions should be made in the patient's best interests while legal advice is sought as to the validity of the directive.
Improvements in medical skill and technology enable a dying patient to be kept alive for longer than ever before and as a result, doctors have to respect patient choice with regard to their autonomy. In the past, patients nearing the end of their life would be comfortable with doctors making decisions on there behalf; however, this is now not the case. Patients no longer automatically accept that a doctor can make clinical judgments of best interests.
Legislation intended to give effect to patient's anticipatory decisions first emerged in the United Stated during the mid-1970s. Advance refusals of medical treatment, known as living wills, advance directives (AD) or advance statements have been recognised and given force at common law in England and Wales in Re C (adult: refusal of treatment) and Re T (adult: refusal of treatment).
In 1995, the Law Commission proposed that the law regarding advance decision-making should be set out in statutory form to promote clarity and consistency (Mental Incapacity, Law Commission Report 231, March 1995). The Mental Capacity Act was eventually passed in 2005 and has come into force recently to provide a statutory basis for advance decisions to refuse treatment. Although it makes a few important changes to the common law, most of the Act simply supports the existing common law position. Under the Act, if an advance refusal is deemed valid and applicable, it must be adhered to even when it involves life-sustaining treatment. The Act also provides a number of safeguards to ensure that advance directives are not misused, for example allowing a doctor to treat if there is uncertainty about the directive.
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