The BBC yesterday reported on the sad case of Brenda Grant who had made an advance decision (or ‘living will’) specifying her wish not to be kept alive in certain circumstances. It was reported that Mrs Grant made the advance decision after seeing her mother lose independence to dementia and that she ‘feared degradation and indignity more than death’.

Mrs Grant sadly suffered a stroke in 2012. Unfortunately, the advance decision was lost amongst her medical notes and therefore this decision was not honoured and as a result Mrs Grant continued to receive treatment for almost two years that would have been against her wishes. The George Eliot Hospital Trust has admitted liability and have apologised to Mrs Grant’s family and agreed to pay them £45,000. They have also now begun keeping a record of any advance decision on the front of a patient’s medical notes.

This sad case highlights both the importance of advance decisions, but also the way in which these are recorded

What is an advance decision?

An advance decision is effectively a decision refusing the giving or continuing of specific medical treatment. It can be used to refuse life sustaining treatment, for example artificial nutrition and hydration, and in order to be valid it needs to specify that it is to apply even if life is at risk.

High Court Judge Mr Justice Francis recently stated that it should be compulsory that we all have to make advance decisions following a recent Court of Protection case where a decision was being made regarding treatment for a man in a minimally conscious state. It can be very difficult for a decision to be made on behalf of somebody else, when they are no longer able to make that decision themselves.

How making a Health and Welfare Lasting Power of Attorney may help

An alternative to making an advance decision would be to make a Lasting Power of Attorney for health and appoint somebody that you trust to make such decisions on your behalf.

Without an advance decision or a Lasting Power of Attorney in place if you are unable to make a decision regarding treatment, then this decision would be made in your best interests based on all the relevant factors at that time (for example, professional recommendation, family and friends’ views and your previously expressed wishes).

In cases where there is a dispute as to what is in your best interests then a decision would potentially need to be made by the Court of Protection, which ultimately delays the decision being made and can also cause friends and family additional stress at a difficult time.

If you do have strong views regarding specific treatments, then it is important to record these either by way of an advance decision or by making a Lasting Power of Attorney. Also, it would be helpful to speak with a healthcare professional if you suffer from a particular condition and would like advice as to what the potential future treatments for that condition may be.

What should I do next?

In order for an advance decision to be valid there are strict legal requirements. It is therefore important to seek legal advice if you are unsure and to keep the document under review to ensure that it continues to reflect your wishes.