Last year, the family of a woman whose Living Will had been lost was lost by her hospital received £45,000 in compensation from the NHS.
The case highlighted the importance of Living Wills (often also known as ‘Advance Directives’), and the need to ensure that they are kept track of and regularly updated.
Brenda Grant, of Nuneaton in Warwickshire, suffered a debilitating stroke in 2012, which left her without the ability to walk, talk, or swallow. Some time previously, she had executed a Living Will instructing those caring for her not to prolong her life in such circumstances, stating that she feared ‘degradation and indignity more than death’. She had however, failed to inform any of her family members about the Living Will, and the hospital placed the document in amongst a pile of medical notes, there to lie forgotten for several years.
Mrs Grant was fitted with a tube to allow feeding directly into her stomach and was discharged to a nursing home, where she remained for 22 months. It was only when she was re-admitted to hospital for a different reason that her GP recalled that she had executed a Living Will, and brought this to the hospital’s attention.
On 4th August 2014, nearly two years after her stroke, Mrs Grant finally died.
Law and Practice
At least two conclusions may be drawn from the case of Mrs Grant.
Firstly, Living Wills are useful and important. Despite the hospital’s error, Mrs Grant’s Living Will was, ultimately, followed. Whilst the delay was distressing for the family, and expensive for the NHS, at least Mrs Grant’s wishes were acted upon in the end. Had she not executed the document, she might have remained in the care home for far longer, unable to express her desire to turn off her life-support.
Secondly, a person executing a Living Will should ensure that relevant individuals and advisers are aware of its existence. That might include close family members, any Welfare Attorney, the GP and any legal advisers. Whilst one individual (or organisation) might be expected to forget about the document, where several people are aware of its existence there is a greater chance that it will be acted upon. Secrecy in such circumstances can be counterproductive.
As in so many areas, the law surrounding Living Wills differs between Scotland and England. In England, Living Wills are legally binding and must be followed so long as they meet certain requirements. The legal standing of Living Wills in Scotland has never been tested by the Scottish courts nor are they dealt with in any Scottish legislation. However, doctors (and others taking decisions regarding a person’s health-care) are required to take Living Wills into consideration as evidence of the past wishes of an incapacitated adult.
In practice, Living Wills are treated as binding in Scotland, especially when they have been executed in the relatively recent past. For this reason, it is sensible for a person who has signed a Living Will to periodically confirm that it still represents their wishes.
The Scottish Government is currently consulting on reforms to the Adults With Incapacity (Scotland) Act 2000, which includes the possibility of enacting a statutory framework for Living Wills/Advance Directives. The consultation is open for responses until 30th April 2018, and may lead to a Bill being brought forward to amend the Act.
The consultation document may be found here.