It is important to note that whilst the views and guidance herein are valid at the time of writing (October 2004), it is likely that the guidance will need to be reconsidered in the light of legislation currently under consideration by parliament (The Mental Capacity Bill). Readers are advised to contact the BGS office for further information one the Bill has become law.

The purpose of an advance directive is to provide an opportunity to state treatment preferences should persons lose their capacity for decision making in the future. They derive their authority from the principle of informed consent and the promotion of personal autonomy [1].

As no one has the right to demand the provision of specific forms of treatment, an advance directive necessarily involves an advance refusal of particular treatment if certain circumstances occur. Thus the BMA [2] under the heading Advance Directives (refusals) points out that ‘competent, informed adults have an established right to refuse medical procedures in advance. An unambiguous and informed advance refusal is as valid as a contemporaneous decision’. This statement has been confirmed by legal judgement (Re C, 1994). In another judgment (Re T,1993) the elements considered necessary for the validity of an advance refusal are described. They are summarised by Luttrell [3] as follows:

• the advance refusal was made by a mentally competent adult.
• the consequences of the refusal were known by the person when making the refusal.
• the refusal was intended to apply to the circumstances that have arisen.
• the decision to refuse treatment has not been made under influence by another party.
• the refusal has not been subsequently revoked or cancelled.
• the person making the directive has subsequently become incompetent and so incapable of making a decision about their healthcare when such a decision is needed.

Background
Advance directives were first introduced in the USA following the Karen Quinlan case and consideration of the advantage that would accrue if someone in a permanent and irreversible coma had intimated in advance their wishes for their treatment and care. The difficulty of making decisions for another, and being certain that the decisions made would be consonant with that person’s previously expressed wishes, led to the development of advance directives in which those wishes could be clearly expressed.

Subsequently, advance directives have been recognised as having legal force in the majority of States in USA and also some Provinces in Canada . The main thrust behind an advance directive is the fear of being provided with high technology treatment for the maintenance of life without benefit in terms of the quality of life achieved.

A similar debate has taken place in the UK following the case of Tony Bland. In seeking consent for the withdrawal of food and fluid for a patient in a persistent vegetative state, the case eventually reached the House of Lords as the highest Court of Appeal.

In giving their judgement two of the Law Lords recommended that parliament should consider the issues involved. This led to the House of Lords Select Committee on Medical Ethics which published its report in 1994. It included a discussion of the merits of advance directives and commended their development (para. 263). The report emphasised that a directive could express refusal of any treatment or procedure which would require the consent of the patient if competent. Furthermore it should not contain requests for unlawful interventions or omissions, nor could it require treatment which is judged to be clinically inappropriate by the healthcare team.

The select committee considered legislation in favour of advance directives to be unnecessary but that a code of practice should be developed by the ‘Colleges and Faculties of all the healthcare professions’ as a guide to their members (para. 265).

The BMA set up a steering group in response to these recommendations comprising representatives from medicine, nursing, law and health service management. Its report published in 1965 is the most authoritative commentary on ‘Advance Statements about Medical Treatment’ and summarises the ethical and legal issues involved.

Ethical and legal issues (BMA Code of Practice)

• Discussion of advance directives should be clearly distinguished from discussion of euthanasia and assisted suicide which are entirely separate issues.
• The Code commends entering into a dialogue with patients concerning their future treatment wishes.
• The Code details the different types of statement that may be made (Part 1, Sec. 2).
• The question of capacity to make advance statements is addressed in para. 2.4 and more fully in the BMA and Law Society’s Joint Report on Assessment of Medical Capacity (1995) in Section 10.6.
• Common law recognises that an informed refusal made in advance by an adult who understands the implications of that decision has the same legal power as a contemporaneous refusal.
• Advance statements refusing basic care and maintenance of an incompetent person’s comfort should not as a matter of public policy be binding on care providers (para. 5.1).
• Part III of the Code details the drafting of advance statements, their contents and storage.
• Part IV deals with the implementation of advance statements. Though there is no obligation at present for health professionals to enquire about or seek out the existence of advance statements, nonetheless they may be legally liable if they disregard the terms of such a statement if it is known of and if it is applicable to the current circumstances (para. 11.1).
• The question of healthcare professionals objecting on the grounds of conscience to the consequences of an advance statement is addressed in Section 13.
• The BMA report is currently the most authoritative and practical guide to advance statements and is likely to remain so until or unless there is new statute law concerning these issues.

Problems with Advance Directives in practice

• Advance directives have been developed in North America where healthcare systems are significantly different from the UK .
• There is as yet little reported evidence of their effectiveness in practice and whether they achieve their theoretical aims.
• There is a presumption that an advance directive continues to represent the wishes of the individual unless it is revoked orally or in writing. Such a revocation may not be known to the healthcare team responsible for the patient.
• There is no legal requirement for expert confirmation of mental capacity to execute an advance statement at the time it is made and also there can be no certainty that coercion has not been involved.
• The storage, revision or delivery of an advance statement at the applicable time poses practical problems.
• An advance statement could act against the principal’s best interests if it were to be implemented in circumstances that were not precisely those which were intended. Some of the problems with implementation have been described by Loewy (1994) drawing on experience in USA .

Present position

• A series of seminars was held in 1994 under the auspices of E.A.G.L.E., the Age Concern England Journal of Ageing, Law and Ethics. A summary of the proceedings was published in 1995 (Vol 3, Issue 4).
• The Law Commission in its Report on Mental Incapacity (No 231) considered the question of the legal status of advance statements and in their Draft Bill attached to the report, recommend their statutory recognition with the proviso that refusal of treatment should not preclude the provision of basic care. Basic care is defined in the report as being care to maintain bodily cleanliness and the alleviation of severe pain as well as the provision of direct oral nutrition and hydration (Draft Bill clause 9(7)(a) and (8).
• The Law Commission themselves state that despite the recommendations in their Draft Bill, the Secretary of State may decide that no further guidance than the Code of Practice now published by the BMA may be necessary (Law Commission report 231, para. 5.39).

 Bibliography

1. Schloendorff v Society of New York Hospital (1914) 105 NE 92.
2. Advance Statements about Medical Treatment, Code of Practice with explanatory notes. 1995 London . BMJ Publishing Group.
3. Luttrell S (1996) BMJ 313 1148
4. Assessment of Mental Capacity, guidance for doctors and lawyers. 1995 London . BMA.
5. C (Adult: Refusal of Treatment), Re (1994) 1 WLR 290
6. EAGLE 1995 Volume 3, Issue 4. February/March 1995.
7. Living will, Consent to treatment at the end of Life (1988) Age Concern England and King’s College London, Arnold .
8. Loewy E H 1994 In Health Care Ethics Ed. Monagle J F & Thomasma D C Chapter 12 Maryland, Aspen Publishers, USA.
9. Mental Incapacity. Law Commission Report 231 (1995), London , HMSO.
10. Report of the Select Committee on Medical Ethics (1994) House of Lords, London , HMSO.
11. T (Adult: Refusal of Treatment), Re (1993) Fam 95.