Asked to assist with a living will

Business Dilemmas

A private GP asks for advice about a patient who wishes to make an advance decision to refuse medical treatment. Dr Sally Old responds 





Dilemma 1

Must I help her with a living will?

QI am a private GP and have been asked by one of my long-term patients to help her set up a ‘living will’. 

Both of her parents spent a considerable amount of time in hospital during their last illnesses. 

She was very distressed about this and does not want this to happen to her. Although she has no medical problems at the moment and is generally fit and well, she wants it on record that she would not want hospital treatment if she was terminally ill and could not make decisions for herself.

I feel uncomfortable about this, as she is currently well. Do I have an obligation to assist her?

ASince the introduction of the Mental Capacity Act 2005 in England and Wales –although other UK jurisdictions have similar legislation in place – the concept of a living will has been replaced by the ‘advance decision’ to refuse treatment. 

The law allows for a person to specify that, in future, if they have then lost capacity to make the decision for themselves, certain treatments should not be carried out or continued. 

A valid and applicable advance decision to refuse treatment in this way is legally binding. 

Advance decision

A patient facing an illness likely to limit their life and/or ability to make decisions might foresee what lies ahead for them and write an advance decision about the treatments that they would not want in those circumstances. 

Indeed, the GMC advises doctors to anticipate this and encourages such patients to plan their future care. 

The difficulty for this patient, as you have identified, is in producing a valid and applicable advance decision when the nature of any future illness is unknown.

If they were to later lose capacity in a situation that was not anticipated at the time they signed the advance directive, then it may not be effective. This may result in them receiving treatments that they would not have wanted.

The patient may wish to consider the alternative of arranging a lasting power of attorney (LPA) for their personal welfare, which would include medical treatment. 

By appointing someone they trust, the patient could ensure that the attorney is updated regarding any changes in their health and wishes over time. 

The personal welfare LPA would only apply once the patient had lost the capacity to make decisions for themselves. The attorney can then make decisions on behalf of the patient in the patient’s best interests. 

If the patient wants the attorney to make decisions about life-sustaining treatment, then this must be specified in the LPA.

When a chaperone is declined

Dr Sally Old

Dr Sally Old discusses how to proceed when a patient does not want a chaperone present during an intimate examination 





Dilemma 2

Should I refuse to treat my patient?

Q I am due to see a patient in the coming weeks for a check-up which will include an intimate examination, namely of the breast area. 

When I offered a chaperone to facilitate this, the patient refused, citing it as unnecessary. 

I believe chaperones are a good idea in these types of examinations to safeguard both the patient and the doctor; however, I want to respect my patient’s wishes. 

What should I do? Should I refuse to treat the patient? 

A In the first instance, make sure the patient knows that a chaperone is there for them. Their function is to reassure them if they experience distress, protect their dignity and confidentiality, and offer support throughout the examination. 

They can also facilitate communication, especially if there is a language barrier. A secondary function of the chaperone is to discourage unfounded allegations of improper behaviour, as they are present during the examination as a witness. 

Current GMC guidance makes it clear that a patient’s opinion and a doctor’s opinion of what constitutes an intimate examination can be different. 

As you have done, doctors should use their professional judgment and offer the patient the option of a chaperone wherever possible before conducting an intimate examination. 

The chaperone should usually be a trained health professional. However, it may be worth asking whether the patient would be more comfortable with a family member or friend present as well. As long as this is a ‘reasonable request’, you should comply with it. 

Right to refuse

Patients do have a right to refuse a chaperone, and if this is still the case after they have been fully informed, this decision should be respected. 

Try to avoid putting pressure on the patient either way. If you are unwilling to conduct the examination, you should explain why to the patient, making your reasons clear. 

You may need to offer an alternative appointment or an alternative doctor. However, if the examination is needed, and no suitable alternative arrangements can be made, then you will need to proceed without a chaperone.

It is a good idea to publicise your chaperone policy; for example, by way of posters in the waiting room and clinical areas. This can help manage expectations and encourage patients to make their wishes known as soon as possible. 

If you do go ahead with the examination without a chaperone, make sure you record that you offered one, but the patient declined.

Dr Sally Old is a medico-legal adviser at the Medical Defence Union (MDU)