In February 1994 the House of Lords select committee on medical ethics published a report recommending that 'instead of legislation for advance directives generally, the colleges and faculties of all the health-care professions should jointly develop a code of practice to guide their members'.

On 5 April 1995 the British Medical Association (BMA), in conjunction with the Royal Colleges of Physicians, Nursing, and General Practitioners, launched 'Advance statements about medical treatment: a code of practice'.In its report on mental incapacity published on 1 March the Law Commission proposed specific legislation on advance refusals of treatment which currently comprises a single clause in its draft Mental Incapacity Bill.

However, the commissioners anticipated that the BMA's code of practice would 'be able to address the many points of detail and practice that our primary legislation cannot hope to cover'.

In effect, it is intended that the code or subsequent editions should eventually assume the status of secondary legislation, and in this respect it is an essential addition to the library of any solicitor who practises in this area of the law.

The section dealing with good clinical practice in the implementation of an advance statement is particularly useful.The House of Lords select committee referred to advance directives.

The Law Commission proposed legislation on advance refusals, and the BMA's code covers advance statements.

There is plenty of scope for confusion, and it is necessary to distinguish between what the code of practice describes as advance directives (refusals) and any other kind of advance statement.

Advance statements are the genus of which an advance directive is a species, but so far the common law has only considered the latter.

Whether written or spoken, an advance refusal of treatment is legally binding on health professionals provided that it: is clearly established; is applicable in the circumstances; envisaged the circumstances which have arisen; was made by an adult, who had capacity and was not unduly influenced by anyone else when making it; does not preclude compulsory treatment under the Mental Health Act; and does not preclude the provision of basic care.Any other kind of advance statement such as: 'I want to be kept alive for as long as possible using any form of treatment available' or 'I would like [a named person] to make any treatment decisions on my behalf' or 'I fear degeneration and indignity far more than I fear death itself' is not legally enforceable at present but deserves, as the code puts it, 'thorough consideration and respect'.There could be problems over the definition of basic care, the provision of which cannot be precluded by an advance directive.

The Law Commission has defined it as meaning 'care to maintain bodily cleanliness and to alleviate severe pain and the provision of direct oral nutrition and hydration'.

The code defines it as 'those procedures essential to keep an individual comfortable.

The administration of medication or the performance of any procedure which is solely or primarily designed to provide comfort to the patient or alleviate that person's pain, symptoms or distress are facets of basic care.' The code, therefore, suggests that it is possible in an advance directive to refuse direct oral nutrition and hydration, and in the explanatory notes the BMA states that 'recognising that near the end of life patients seldom want nutrition or hydration, basic care would nevertheless include measures such as moistening a patient's mouth as necessary for comfort'.Who is better qualified to advise on the preparation and drafting of advance statements, a doctor or a lawyer? A claim could be staked for the legal profession on the grounds that drafting is a skill in which most solicitors are accomplished, and advance statements are part of the overall planning strategy for incapacity and death.

Increasingly nowadays the end-of-life package comprises a will, a living will and an enduring power of attorney.The BMA's code of practice, however, is designed principally to provide practical guidance to health professionals, rather than lawyers or the general public - which could be a shortcoming, given its proposed quasi-legislative status - and it assumes that the drafting of advance statements will be undertaken by the medical profession.

There is nothing inherently wrong with this assumption.

After all, the best draftsme n are usually those who have to implement the instructions contained in a document, and a patient's doctor is likely to be more conversant than a solicitor with the clinical conditions arising and the treatment options available at the end of life.For this reason the code offers very little practical guidance to solicitors who are instructed to draw up an advance statement or advice on how they should liaise with the client's GP.

Neither the BMA nor the Law Commission favour any prescribed or recommended forms of advance statement, although the Law Commission has suggested that 'the most effective format will be one which uses succinct and non-technical language, and avoids detailed provisions about particular ailments or conditions or particular treatments or procedures'.In the appendix to the explanatory notes accompanying the code of practice there is a checklist of the essential information required in an advance statement.

It includes 'name and address of general practitioner' and 'whether advice was sought from health professionals', thereby furthering the claim of the medical profession to draft and lend credibility to advance statements.