Advanced Decisions

30th April 2020

What is an Advanced Decision?

Also known as “advanced directives” and “living wills”, Advanced Decisions (ADs) are, very simply, an instruction as to what medical treatment a person wishes, or does not wish to receive in the future if at some point they are unable to give instructions themselves. This may because they lack the physical or mental capacity to do so.

Advanced Decisions can be made both orally and in writing, although it’s worth remembering that it’s harder to prove the existence of an oral Advanced Decision. The exception to this is where the Advanced Decision refuses life-sustaining treatment – in this case it must be in writing.

Advanced Decisions formalities

In order for an Advanced Decision to be valid, there are certain conditions which the decision maker must meet:

  • They must be aged 18 or over
  • They must have capacity
    • While there is a presumption of capacity, if healthcare officials have reasonable grounds to doubt it, they may be justified in not following the Advanced Decision.

While no specific formalities or medical language needs to be used in an Advanced Decision (with the exception of where life-sustaining treatment is refused), the Mental Capacity Act Code of Practice provides suggestions as to what to include in a written Advanced Decision:

  • Full details of the person making the Advance Decision, including date of birth, home address and any distinguishing features (in case healthcare professionals need to identify an unconscious person, for example)
  • The name and address of the person’s GP and whether they have a copy of the document
  • A statement that the document should be used if the person ever lacks capacity to make treatment decisions
  • A clear statement of the decision, including any treatment to be refused
  • The circumstances in which the decision will apply
  • The date the document was written (or reviewed)
  • The person’s signature (or the signature of someone the person has asked to sign on their behalf and in their presence)
  • The signature of the person witnessing the signature, if there is one (or a statement directing somebody to sign on the person’s behalf).

Other considerations

There’s a difference between how an anticipatory request for certain treatment is treated, compared to an anticipatory refusal for treatment. Even where a person has capacity, they are unable to demand a certain form of treatment. As a result, where such a request is made in an advanced decision, it is only viewed as guidance as to how to treat that person – it cannot guarantee that the person will receive that treatment. On the other hand, a refusal for treatment in an advanced decision will be enforceable as a person always has the right to refuse treatment.

An AD may also not be enforceable if, after it was made, you subsequently acted in a way which was inconsistent with the AD.

How we can help

While we are able to help you draft an advanced decision, we would always recommend that you speak with your GP first as they will be able to provide advice on the specifics of medical treatment. If you contact your GP, they may have standard templates you may choose to use.

We can also advise you on possible alternatives to an advanced decision, such as a Health and Wellbeing Lasting Power of Attorney.

This article has been co-written by Arshoo Singh and Alex Lepretre.

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