Ethics review: 'Living wills' and intensive care – an overview of the American experience

Abstract

Withdrawal and limitation of life support in the intensive care unit is common, although how this decision is reached can be varied and arbitrary. Inevitably, the patient is unable to participate in this discussion because their capacity is limited by the nature of the illness and the effects of its treatment. Physicians often discuss these decisions with relatives in an attempt to respect the patient's wishes despite evidence suggesting that the relatives may not correctly reflect the patient's desires. Advance decisions, commonly known as 'living wills', have been proposed as a way of facilitating the maintenance of an individual's autonomy when they become incapacitated. Others have argued that legalising advance decisions is euthanasia by the back door. In October 2007 in England and Wales, advance decisions will become legally binding as part of the 2005 Mental Capacity Act. This has been the case in the USA for many years. The purpose of the present review is to examine the published literature regarding the effect of advance decisions in relation to the provision of adult critical care. IntroductionAutonomy, competence and capacity are limited by the nature of the critical illness, or by the effects of treatment. Withdrawing life-support in the intensive care unit (ICU) is common and is often made without the direct involvement of the patient, whose preferences regarding end-of-life treatment are usually unknown [1,2]. Physicians therefore frequently consult relatives regarding the appropriateness of treatment intervention, despite data suggesting that the consulted relatives find this emotionally stressful and do not consistently make decisions that accurately reflect their relative's wishes [3,4].Advance decisions (ADs), commonly known as 'living wills', have been proposed as a way of facilitating the maintenance of a patient's autonomy if they become incapacitated in the future. In October 2007 in England and Wales, ADs will become legally binding as part of the 2005 Mental Capacity Act. This has been the case in the USA for over 20 years [5].The 2005 Mental Capacity Act allows a competent person aged over 18 to make an AD that pre-emptively states their treatment preferences or to appoint a lasting power of attorney (LPA) to make decisions for them, if they become incapacitated. There is no set format for an AD (it can be written or verbal) unless it is specifically pertaining to refusing life-sustaining treatment, where it must be written and counter-signed. There is no obligation to seek advice from medical professionals when drawing up an AD, and it can be revoked verbally. If valid to the clinical scenario, an AD will override a LPA if one exists. The LPA must act in the patient's best interests, must be registered with the Office of Public Guardian, and the document must be structured in a statutory form that is counter-signed by an independent third party. The LPA can refuse life-sustaining treatment if it is explicitly stated in the patient's draft, is counter-signed and is deemed to be...

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