THE CODE OF PRACTICE that accompanies the Mental Incapacity Act 2005 features the cherubic Lord Falconer, the Lord Chancellor at the time it was passed. It is, he declares, ‘a vitally important piece of legislation, and one that will make a real difference to the lives of people who may lack mental capacity.’
I’ll say. The Act relates to what could happen to a person once he is not in a position to make decisions for himself, permanently or temporarily, or to communicate those decisions. It allows you to decide what should happen in that case in advance, usually in writing. Some people may decide to give Lasting Power of Attorney to a son or daughter, say, to take over the handling of their finances if they get Alzheimer’s and can barely handle small change.
No great harm there, you may think. The problematic aspect of the Act, however, the bit we usually mean when we talk about Living Wills, is advance decisions, in writing, to refuse medical treatment. So if you have an accident and can’t communicate, or if you suffer from a degenerative illness, or if you end up in a vegetative state – that is to say, perfectly capable of living for years but quite unable to talk – your advance instruction to refuse treatment will be acted on. Lots of people feel vaguely that they might prefer a nice dignified death to prolonged invasive or traumatic treatment or to life as what is rudely described as a vegetable. They can either make an advance directive saying that they do not want life-
sustaining treatment or they can explicitly authorise their attorney to make these decisions for them.

The trouble is, the advance directive can cover any kind of treatment. It could mean refusing antibiotics or heart resuscitation. But crucially, under British case law, as the Code of Practice makes clear, artificial nutrition and hydration, or ANH, is classed as medical treatment, not as normal care. So, the Act allows you to make an advance directive to turn down food and water where they are delivered by artificial means. If you can’t eat and drink by mouth, you would normally be given nutrition and water through a feeding tube. And if you don’t get that support artificially, you die.

So, if you sign away your right to be given artificial hydration, you are opting not just for death, but for death in a particularly gruesome form. You are asking to die of thirst. Nurses will be allowed to moisten your lips or your tongue, but dehydration is registered deep in the brain, not just in a dry mouth. Indeed, there are cases where being given water by mouth would actually kill you, whereas tube-hydration would sustain life. And just because you are unable to communicate, it doesn’t mean that you do not feel the acute distress of extreme thirst.
What is more, medical staff would not be able to help you, even though they may find the situation intolerable. Indeed, if they do insert feeding tubes contrary to your advance directive, they may be prosecuted for assault.

So if you are even contemplating a Living Will, if you are making an advance directive, you should make clear that your refusal of life-sustaining treatment does not include ANH. What’s more, you’d be mad to give someone else the power of attorney to withdraw the provision of food and water from you. Honestly, is there
anyone who actually wants to die of thirst?

Taken from Oldie 230, April 2008