Living wills have a place in society, argues Rosamund Rhodes-Kemp, but they need to be subject to stringent controls to prevent abuse




The Indian Ocean tsunami has only emphasised the uncertainty surrounding life, loss and death. It is a fitting backdrop against which to look at 'living wills'.

A living will is a document prepared by a person setting out situations in which that person will not receive medical treatment. The purpose is to ensure that patients' wishes as to treatment are adhered to when they may not be physically or mentally able to communicate those wishes to those providing them with medical treatment. It is an attempt to strike a balance between clinicians' Hippocratic oath to preserve life and patients' autonomy.


Living wills come in various formats - prepared by a solicitor or not, and with or without discussion with a patient's GP or treating physician. Nonetheless, they are binding on clinicians.


The use of such wills has been limited despite much discussion and consideration of format, circumstances and content when they first surfaced more than a decade ago. They have recently been back in the spotlight and are on the legislative agenda - a House of Commons debate took place just before Christmas with a view to embodying the legal status of living wills by statute.


It is tempting to ask why parliamentary time should be spent on legislating for documents that are already legally binding. It may be part of a recent spate of proposed legislation by rights campaigners - another example of which is Lord Joffe's private member's Bill covering assisted dying for the terminally ill.


It would also be useful to have some clarity in relation to the format and witnessing of living wills, so that when people set out circumstances in which they would not wish to be treated, they can be sure that those wishes are taken into account.


However, except in a limited number of situations, those circumstances are going to be difficult to predict. Perhaps it is easier when a known condition is reaching terminal stages, or on receiving a diagnosis for a particularly horrific neurological condition, that follows a predictable pattern of deterioration and death.


But we would not want to see another Harold Shipman, so the validity, witnessing and storage of these documents has to be extremely rigid to prevent abuse. Likewise, people who might feel a burden to those looking after them, should never feel pressured into making a living will.


On a practical level, one has to imagine how the widespread use of living wills would impact on clinical decision-making and the difficult practical and ethical issues that would follow. How would a doctor know a living will had been made? Should the fact be recorded on all of the patient's medical records? But what if the records are not with the patient - should a patient with a living will carry a card? How much information could be stored on the card? What if relatives wanted something quite different and sought to challenge the validity of a living will?


So what use and status should living wills have in a society keen to have patient autonomy, where medical technology is constantly advancing and people are living longer than ever?


There is no doubt a place for living wills in a limited number of medical conditions after careful consideration. But any such document needs to be in a prescribed format, properly witnessed and regularly reviewed to ensure it still reflects the true wishes of the person concerned.


We need to be wary of any notion that we can always predict with certainty what may happen to us, or the way we will respond - physically or mentally - to our personal disasters.


Rosamund Rhodes-Kemp is a partner and head of healthcare at London-based law firm Bolt Burdon Kemp