Remembrance of conversations past: oral advance statements about medical treatment

Polls show increasing public interest in advance statements or directives about medical treatment (“living wills”) but that few people, apart from Jehovah's Witnesses, carry such documents. Patients' firm, witnessed oral decisions are often sufficient to aid clinical decision making but should still be recorded in medical notes. Without documentation, dilemmas arise when others claim to know patients' views on the basis of past unrecorded conversations and demand withdrawal of treatment when patients are not terminally ill and cannot speak for themselves. Legal and ethical considerations oblige doctors to act in the best interests of an incapacitated patient; these considerations are now formally defined in draft legislation as including consideration of the patient's past wishes. The practicalities of ascertaining the strength and validity of such wishes from conversations reported second hand are complex. The paucity of legal and ethical guidance on reported oral advance statements makes debate imperative and renders the alternative of having designated surrogate decision makers increasingly attractive.

At the end of May a case was scheduled to go to the High Court to clarify the circumstances in which legal weight should be given to remarks that people are said to have made, sometimes years before, about what they envisaged to be an acceptable or intolerable existence for their future selves. At the heart of the matter was how to interpret a conversation that G, a young woman now brain damaged, had had with her family while watching the television coverage of the Tony Bland judgment.1 She reportedly emphasised that she would not want to be kept alive in similar circumstances but left no document refusing life prolonging treatment. G subsequently suffered severe disability but, unlike Tony Bland, is not in a persistent vegetative state.

The profound philosophical, psychological, and moral questions raised by the Bland case looked …