Advance directives could prove the key to NICE proposals

21st December 2015

Last week's guidance issued by NICE - The National Institute for Health and Care Excellence, that dying patients should be treated as individuals rather than using the current tick box approach, is being welcomed by one legal expert as it re-inforces her own recommendations made earlier this year.

"The NICE proposals reflect the approach we have been taking with individuals for many years now," comments Annabel K ay, an Associate Solicitor at law firm Higgs & Sons who specialises in care for the elderly and vulnerable

"Treating those who are approaching their end of life with the respect and dignity they deserve requires an individual approach based on their needs and wishes rather than a one-size fits all checklist. 

"Earlier this year I recommended that documents such as advance directives would allow the terminally ill to set out how they wanted to be treated as they approached their end of life. This followed increased criticism of the Liverpool Care Pathway (LCP) which had been introduced in the 1990s as a mean of ensuring people had a dignified and comfortable death."

According to Annabel, who trained and worked as a nurse before moving into the law, the expectation of having a dignified end to one's life should be regarded as a basic human right.

"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."

The new guidelines being put forward by NICE cover many of the same key principles as the LCP, however, NICE has called for a stronger focus on individual plans for each patient, saying their wishes and those of their family must be central. Annabel believes documents such as advance directives provide the perfect vehicle.

 "We firmly believe that for certain people, whatever their age, an advance directive can help to ease some of the fears about how they will be looked after as the end of their life approaches.

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

 "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."

"The aim of advance directives 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 highlighted in the NICE recommendations  where basic human needs like hydration and food have been denied.

"What we want to do is prolong an individual's well being 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 Midlands based law firm, Higgs & Sons.  Contact Annabel at annabel.kay@higgsandsons.co.uk


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