Directives may help to lessen the pain of losing a loved one

21st August 2015

Although it is something that few of us like to talk about, the subject of dying has featured heavily in the news recently. 

With growing concern over the care and treatment of the terminally ill, in particular the recent criticism regarding the potential misuse of the Palliative Care Pathway system, one leading expert  looks at how communicating one's wishes  through documents such as advance directives, may offer a solution to those worried about medical treatment as they approach their end of life.

"The expectation of having a dignified end to one's life is totally justified and should be regarded as a basic human right," comments Annabel K ay, a solicitor who specialises in applications to the Court of Protection and matters where mental capacity is questioned.

"However in many cases, carers and relatives find that their loved ones die in circumstances which create on going feelings of confusion and unhappiness which extends the natural feelings of loss and pain.

"Few solutions to this very unhappy set of circumstances are perfect, but there are legal options that people can consider if they are motivated to plan for the end of their life."

Annabel, who works at leading Midlands law firm Higgs & Sons, has a unique insight into these highly sensitive areas, having initially trained and worked as a nurse before moving into the law.

"It may be the case that for certain people, whatever their age, the possibility of having an advance directive drafted may help to ease some of the fears about how they will be looked after as the end of their life approaches," she continues.

"Many lawyers find that their clients express a fear that whatever documentation exists, their wishes may not be referred to or followed by medical staff.   This is an on going concern, but recent studies have shown that, if the document is prepared in collaboration with all relevant parties, the probability of its terms being followed is far greater.

"The best type of advance decision therefore is one which is made as a three way collaboration between client and lawyer and then, between patient and doctor. "

Annabel believes that the most successful advance directives often begin with an acknowledgment of the care, support and clinical excellence that an individual has received (and will continue to receive) over the term of their illness.  It is also beneficial to express the fact that any  decision not to receive treatment is not due ingratitude or a reflection of the care given to date, but because the individual has given full consideration to the circumstances as to how they would like to make their dignified exit from their life and made a choice accordingly.

"From a legal perspective, we need to ensure that the document is totally valid and in compliance with the terms of the Mental Capacity Act. Whilst from a medical perspective, we need to think about how the terms under which the patient is going to refuse treatment accord to their underlying condition.

"Following on from this, and perhaps most importantly, we need to ensure that all of those who have a responsibility for the individual are aware that there is an advance decision in place."

According to Annabel, the value of documents such as advance directives is that they can be created around the very specific circumstances or the illness or disability that the person has.  They can be prepared with sensitivity and, with the client's consent, the contents made known so as to minimise the risk of failure of compliance. 

"The aim of directives such as these is to try and avoid patients being put on to potentially clumsy palliative care pathways which, although well meaning, can result in circumstances such as those that have been recently reported where basic human needs like hydration and food have been denied.

"It may sound like little things but what we want to do is prolong an individual's wellbeing for as long as possible so that they can enjoy that last meal or an evening at home with friends and family.

"It is truly about combining the best of law and medicine to preserve an individual's dignity at a time when it is perhaps most important of all - at the end of their life."

Annabel Kay is an associate in the private client team at Higgs & Sons solicitors, dealing specifically with matters where mental capacity is questioned.  Contact Annabel at annabel.kay@higgsandsons.co.uk


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