A living will is a formal document in which people can set out in advance what kind of medical treatment they wish or do not wish to receive in the event that they subsequently become incapable of communicating their own wishes.A living will is concerned with medical treatment only and does not deal with a person's property or funeral requests which should be dealt with by means of an ordinary will.

The term 'living will' is therefore to some extent a misnomer and the term 'advance directive' is often used in its place.Such documents are commonly made by people with terminal illness but can be made by any competent adult at any stage of life.

Living wills have been common for many years in the USA and Australia and the Canadian courts have recently indicated that they would also be accepted as legally binding documents in that jurisdiction.A number of charitable organisations and others in this country have produced their own form of living will.

Perhaps the best known is that produced by the HIV and Aids charity, the Terrence Higgins Trust, which has been welcomed by both the Law Society and the medical profession.

This document took two years to research and was developed in conjunction with the Centre of Medical Law and Ethics, King's College, London.

Although specifically drafted for people with HIV or Aids, it is suitable for use by anyone wishing to make their wishes clear about medical treatment in the event of subsequent illness and incapacity.The legal status of living wills has not yet been tested in the English courts and there are currently no statutory guidelines or prescribed form for such a document.

However, it is my view that following the House of Lords judgment in Airedale NHS Trust v Bland [1993] 2 WLR 367 it is arguable that the legal status of living wills in this country is now accepted.It has long been accepted in English law that doctors must take into account the wishes of an adult patient, who is conscious and of sound mind.

The right of 'self-determination' was recognised by Lord Scarman in Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 All ER 643.

Medical treatment against such a patient's wishes amounts to both a tort and the crime of battery (see Re F [Mental Patient: Sterilization] [1990] 2 AC 1-84).The Court of Appeal in Re J (a Minor) (Wardship: Medical Treatment) [1991] Fam 33 recognised a patient's right to refuse treatment which might avert death and this right was explicitly restated by the House of Lords in Bland.

Lord Goff said: 'The principle of the sanctity of human life must yield to the principle of self-determination.' This is also the position in the USA where the New Jersey supreme court in 1986 affirmed that the decision to choose a course of action which fails to avert death is not for the doctor but was a 'moral and philosophical decision' for a competent adult alone.The English courts, while acknowledging such a right in principle, have in practice resisted it, most notably in cases involving Jehovah's Witnesses, by intervening to sanction life-saving operations (see Re T (Adult: Refusal of Medical Treatment) [1992] 3 WLR 782).

Contrast this with the 1988 Canadian case of Mallette v Shulman 63 OR (2nd) 243, where the court ruled that a doctor who disregarded the wishes of an unconscious Jehovah's Witness who carried a card refusing blood transfusions had committed battery.

Last year in Sunderland when a Jehovah's witness bled to death after giving birth a legal representative was sent to the hospital to ensure that a transfusion was not carried out.In Re T, the Court of Appeal indicated that a properly prepared living will would be valid.

Lord Donaldson said: 'An anticipatory choice...if clearly established and applicable in the circumstances - two major "ifs" - would bind the practitioner.'Since Tony Bland had not made a living will it was not necessary for the House of Lords to consider directly whether such a document would be legally binding in English law.

In Bland only Lord Mustill referred specifically to living wills which he said had been held 'sufficient' by the US courts for the making of an antecedent choice.

He also pointed out the 'striking fact that in 20 out of the 39 American states which have legislated in favour of living wills the legislation specifically excludes termination of life by the withdrawal of nourishment and hydration'.Lord Mustill thought it unnecessary to explore whether the US approach founded on informed consent and the constitutional rights of the patient would be appropriate in England, 'where constitutional rights play a much less theoretically important role'.However, in Bland, patient consent to medical treatment was a central pillar of all the judgments in the House of Lords.

Lord Mustill said: 'The consent of the patient is so important...because it is usually essential to the propriety of medical treatment.

Thus, if the consent is absent, and is not dispensed with in special circumstances by opera tion of law, the acts of the doctor lose their immunity...If the patient is capable of making a decision on whether to permit treatment and decides not to permit it, his choice must be obeyed, even if on any objective view it is contrary to his best interests.

A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue.'Moreover, the acceptance of the US approach and therefore the conclusion that a living will would be legally binding in English law appears to be implicit in at least two of the judgments.Lord Keith of Kinkel said that the right of a patient to decline to undergo treatment 'extends to the situation where the person, in anticipation of his, through one cause or another, entering into a condition such as PVS [persistent vegetative state], gives clear instructions that in such event he is not to be given medical care, including artificial feeding, designed to keep him alive'.Lord Goff expressed the same view with some caution: 'It has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued...

Moreover, the same principle applies where the patient's refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it, though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred.'The clear inference is that a living will signed by a competent person would be upheld by the English courts and that doctors would be under a duty to respect its instructions and would be at risk if they knowingly ignored them.

Logically, where a living will exists, the instructions it contains will override any other duty of doctors, for example, to act in the 'best interests' of a patient.

For this reason, it is vital that living wills are carefully drafted.There are circumstances which would complicate the situation such as the pregnancy of a patient.

This situation arose in this country in the case of Melanie Douglas who was injured in a road accident in December 1992 when eight weeks pregnant and was placed on a life support machine.

The doctors in that case had a duty to consider the rights of two persons - the mother and her unborn baby.The legal effectiveness of a living will will depend on the declarant's competence at the time of signing and on the decision by the patient being an informed one.

For this reason, it is advisable for a person considering making a living will to discuss the matter with their doctor and for the doctor to indicate either on the document itself or in a separate note that discussion has taken place.In the document the patient can express his or her wishes as to the medical treatment he or she wants or does not want in the event of terminal illness.

The living will devised by the Terrence Higgins Trust posits three possible health conditions:1.

Permanent physical illness2.

Permanent mental illness3.

Permanent unconsciousness.Patients can also record particular types of medical treatment which they may or may not wish to have, eg artificial breathing or feeding.

In Bland, the House of Lords affirmed the Court of Appeal's ruling that artificial feeding does constitute 'medical treatment' and therefore its withdrawal does not amount to murder.

It is important that patients state clearly in a living will in what circum stances they wish artificial feeding to be discontinued, eg after a suitable period for a proper prognosis to be obtained.English criminal law draws a sharp distinction between acts and omissions and this distinction was central to the reasoning of the judgments in Bland.

It is therefore clear that a patient cannot require a doctor to take a positive step which would cause the patient's death and such a request within a living will would not be binding.

A doctor who obeyed such a request would, according to the circumstances, be guilty of murder or of aiding or abetting suicide, contrary to s.2(1) of the Suicide Act 1961.The dangers for doctors in this area were highlighted in 1992 in the much publicised case involving Dr Nigel Cox, the Winchester consultant, who injected his patient with a lethal dose of potassium chloride and was subsequently convicted of attempted murder and received a 12-month suspended prison sentence.

As Lord Mustill said in Bland: 'The fact that the doctor's motives are kindly will for some, although not for all, transform the moral quality of his act, but this makes no difference in law, if he is intent to kill or cause grievous bodily harm which constitutes the "mens rea" of murder and the reason why the intent was formed makes no difference at all.'The living will devised by the Terrence Higgins Trust also permits a person to appoint a 'health care proxy' to take part in medical decisions on his or her behalf in the event of subsequent incapacity.

It is unclear what status such an appointee would have or in what circumstances, if any, doctors would have a duty to consult with or be bound by the opinion of a health care proxy.

In the circumstances of Bland, Lord Mustill's view was that the appointment of a 'surrogate' would be meaningless.

Possibly in circumstances where instructions contained in a living will were unclear then a properly appointed health care proxy would be consulted to clarify a patient's wishes.Having clearly stated his or her instructions with regard to medical treatment, a person should sign and date the living will, preferably in the presence of an independent witness.

The witness should be over 18 and should not be a close relation or anyone who stands to gain anything by the death, eg a beneficiary under a will.The subject of living wills is an integral part of the wider 'right to die' debate which encompasses euthanasia and raises questions of fundamental human rights, The important ethical, moral, religious and legal implications arising were recognised but not considered in detail by their lordships in Bland.It is true to say that the development of English law in this difficult area has lagged behind that of other countries, most notably in the Commonwealth and in the USA.

The crude code of the criminal law is too blunt an instrument to deal with the highly sensitive and complex issues raised by the rights and treatment of the terminally ill.Lord Goff in his judgment in Bland referred to Compton J's words in Barber v Superior Court of State of California [1983] 195 Cal Rptr 484: 'A murder prosecution is a poor way to design an ethical and moral code for doctors who are faced with decisions concerning the use of costly and extraordinary "life support" equipment.' Other countries have recognised that a more sophisticated approach is required.Their lordships in Bland acknowledged that the existing law had been left behind by the rapid advances of medical technology.

Lord Mustill referred to the gap between old law and new medicines.

Lord Lowry said: 'It is important , but particularly in the area of criminal law which governs conduct, that society's notion of what is the law and what is right should coincide.

One role of the legislator is to detect any disparity between these notions and to take appropriate action to close the gap.'The House of Lords felt that it was for Parliament, not the courts, to decide the broader issues raised by the case.

Lord Browne-Wilkinson said: 'The judge's function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society.

If Parliament fails to act, then judge-made law will of necessity through a gradual and uncertain process provide a legal answer to each new question as it arises.

But in my judgment that is not the best way to proceed.'It will be interesting to see what action, if any, Parliament takes in the light of the Bland judgment.

However, it will be enormously difficult to draft statutory guidelines in this area of the law which are both meaningful but do not permit abuse.Meanwhile, the House of Lords agreed with the view taken by the president of the Family Division and the Court of Appeal that, until a body of experience and practice has been built up, an application to the court would be necessary in every case as a matter of routine for a ruling as to whether treatment and care could be discontinued in the case of a PVS patient.

Lord Goff, however, expressed the hope that the president of the Family Division would soon feel able to relax this requirement so as to limit applications for declarations to those cases in which there is a special need for the procedure to be invoked.

These might include cases where there was a medical disagreement as to diagnosis or prognosis, disagreement by next of kin with a medical recommendation or a conflict of interest between next of kin and patient.What appears clear from the Bland judgment is that if there is a dispute, the existence of a living will is likely to provide admissible and decisive evidence on an application to the court of a patient's consent or non-consent to medical treatment.

For that reason and as medical science continues to advance living wills will undoubtedly become increasingly popular in this country.Since this article was written the House of Lords select committee on medical ethics has published its report.

It recommended that there should be no change to the existing law in respect of euthanasia, assisted suicide or mercy killing, while commending the development of advance directives.

It concluded that legislation for advance directive was generally unnecessary: 'Doctors are increasingly recognising their ethical obligation to comply with advance directives.

The development of case law is moving in the same direction.'The select committee did, however, recommend the development of a code of practice and recommended the BMA's statement on advancement directives, published in April 1992, as the basis for such a code.

The code would establish procedures for directives to be lodged by patients with their GPs and for their subsequent production, eg on admission to hospital.

It would also encourage patients to regularly review and re-endorse the provisions of their advance directives