"Living Wills" (Hansard, 15 March 1995)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, no decisions have yet been taken on whether the Government will introduce legislation to implement the Law Commission's proposals on "living wills". The Government welcome the Law Commission report on mental incapacity and intend to give it full consideration. The Government have set up an interdepartmental working group, chaired by my department, to co-ordinate this consideration. The working group's terms of reference are to co-ordinate the government response to the Law Commission report on mental incapacity published on 1st March 1995 and to produce an initial report by 1st September 1995.

§ Lord Ashley of Stoke
My Lords, I appreciate that reply. Will the noble and learned Lord take account of the view that as it is now legally permissible for people with capacity to refuse medical treatment—a refusal that would lead to death—they should have the same right to refuse medical treatment for the future when they are without capacity provided that they leave a specific advance directive which acknowledges that this may lead to death?

§ The Lord Chancellor
My Lords, my understanding of the existing law, as stated also by the Law Commission at paragraph 5.14 of its report, is that, An advance refusal made with capacity simply survives any supervening incapacity".
850 As the noble Lord said, the precise circumstances to which it will apply and its validity are important. It must be plain that the intention of the person making the directive was incorporated in the instrument.

§ Lord Allen of Abbeydale
My Lords, as one who introduced the Bill on advance directives perhaps I may say how much I welcome the statement which the noble and learned Lord has just made. In the meantime may I put in a plea for avoiding use of the extraordinary phrase "living wills"? An ordinary will is made when one is still living. The advance directives we are talking about are concerned with how one dies.

§ The Lord Chancellor
My Lords, I would be the last to criticise the noble Lord. I imagine that the phrase "living wills" is designed to point to the fact that a living will is supposed to take effect during life whereas ordinary wills take effect on death.

§ Lord Jenkins of Putney
My Lords, is one to assume from what the noble and learned Lord says that an advance directive and a living will are virtually the same thing?

§ The Lord Chancellor
My Lords, I shall limit my answer to my understanding of this, which is that they are two names for the same thing.

§ Lord Stallard
My Lords, would the noble and learned Lord care to comment on the recommendation set out in Clause 9 of the Law Commission's draft Bill that doctors can withhold treatment, which ends a patient's life, if that patient has specifically stated in a living will that he or she wants to die? Surely that can be interpreted as amounting to an encouragement to patients to express suicidal wishes.

§ The Lord Chancellor
My Lords, one has to read the Law Commission's report as a whole. It would not be wise to take a small passage out of context. So far as I am concerned—and so far as the Government are concerned—we are entirely in line with the views on euthanasia expressed by a Select Committee of this House.

§ The Countess of Mar
My Lords, will the noble and learned Lord confirm that all general practitioners are being circulated with leaflets which advise patients how to make a living will?

§ The Lord Chancellor
My Lords, I believe that there are such initiatives. The Law Commission considers that some clarification of the precise circumstances and effects of such documents is required.

§ Lord Ashley of Stoke
My Lords, will the noble and learned Lord bear in mind that many of the passages of the Law Commission's report are, in a sense, self-contradictory and that he is right to say that the report must be taken as a whole if one is to understand its gist? Regardless of what the Law Commission says, I believe that where people specifically state that they do not want to be kept alive by such means they have the right to refuse medical treatment even if that would lead to death, provided that they specify that clearly. It is wrong for doctors to insist on going ahead with medical 851 treatment when it is clearly against the specific wishes of the person concerned. That is the key element in the whole equation.

§ The Lord Chancellor
My Lords, the noble Lord advises me to keep the whole of the Law Commission's report in mind. I shall certainly seek to do that—and I do so gladly. However, with the greatest respect to the noble Lord, I do not accept his view that the Law Commission's report is self-contradictory. As I said, if one reads the report as a whole one realises that it has the cohesion and effectiveness that we have come to associate with reports from the Law Commission.

§ Lord Mishcon
My Lords, will the noble and learned Lord bear in mind the substantial opinion that whereas such documents can be recognised and doctors may pay attention to them they should not be mandatory upon doctors because circumstances may well change?

§ The Lord Chancellor
My Lords, that is certainly true. The noble Lord's question gives me an opportunity to emphasise the fact that for an advance directive to be relevant it must be applicable in the particular circumstances in which the patient and the doctor are placed at the time. It is therefore important that it should be sufficiently specific for that properly to be judged.