Client Guide: Making an advance decision about medical treatment

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An adult (that is a person who is aged 18 or over) who is capable of making decisions about their medical treatment can, if properly informed of the implications and consequences, also make anticipatory decisions about their preferences for medical treatment, intending them to apply at a later stage should they lose capacity to make such decisions for themselves or to communicate such decisions.

The legal enforceability of one type of anticipatory decision, known as "an Advance Decision to Refuse Medical Treatment" has been established by the common law and has now been given statutory authority by the Mental Capacity Act 2005.

Some frequently asked questions:

What is the effect of an Advance Decision?

Provided that the Advance Decision is valid and the particular circumstances specified in it have arisen, then the decision to refuse the specified treatment will have the same effect as a decision made by the person taken at the time when the need to consider treatment arises.

Importantly, a person (such as a doctor) who reasonably believes that the person has made an Advance Decision which is relevant to the circumstances will not be liable for the consequences of withholding or discontinuing the treatment which has been specified.

Can an Advance Decision apply to life sustaining treatment?

Yes, but it must be made clear in the Advance Decision by stipulating that it is to apply "even if my life is at risk".  Additionally, there are special formalities for making an Advance Decision which is to apply in these circumstances.  These are outlined below.

"Life Sustaining Treatment" is defined in the Mental Capacity Act 2005 as "treatment which in the view of a person providing health care for the person concerned is necessary to maintain life".  Therefore, life sustaining treatment is not a category of treatment.  Whether or not a treatment is life sustaining will depend upon the circumstances of a particular situation.  Some treatments will be life sustaining in some situations but not in others; the important factor is if the treatment is needed to keep the person alive.

For example, giving a course of anti-biotic treatment might be life sustaining in some circumstances, but not in others.

What formalities are required for making an Advance Decision?

It is possible for a person to make a purely verbal Advance Decision.  For instance, a person might on admission to hospital tell the doctor treating him that he does not wish to have a particular specified treatment.  However, if an Advance Decision is intended to apply to life sustaining treatment then it must be in writing, must be signed by the maker in the presence of a witness who must also sign the document and, as stated above, must include a clear, specific written statement that the Advance Decision is to apply to the specific treatment even if life is at risk.

Can an Advance Decision be amended or revoked?

It is possible to amend or revoke an Advance Decision at any time and this may be done either verbally or in writing, whether or not the original Advance Decision was made in writing.  It is important that an Advance Decision is reviewed on a regular basis so as to take into account changes in circumstances.  Such a change in circumstance might include new forms of treatment becoming available for a condition which the person making the Advance Decision anticipates affecting them.

Is an Advance Decision different from a Living Will?

No.  "Advance Decision" is the terminology used in the Mental Capacity Act 2005 which became effective on 1 October 2007.  Prior to that Advance Decisions were generally known as Living Wills and also as Advance Directives.

Before the Mental Capacity Act 2005 there had been a number of Court cases in which the Courts had upheld a patient's decision to refuse life sustaining treatment.  The Mental Capacity Act 2005 has therefore given statutory force to the pre-existing case law.

If I have made a Living Will before 1 October 2007 do I now need to make an Advance Decision?

If you intend your Living Will to apply to life sustaining treatment you should make a new Living Will, which complies with the new statutory requirements and in particular state that the Living Will is to apply "even if my life is at risk".

In fact, the majority of living Wills/advance directives made before 1 October 2007 were intended to apply to life sustaining treatment and therefore new Advance Decisions should be made to comply with the Mental Capacity Act 2005.  (The Mental Capacity Act 2005 provides special rules where a person cannot make a new Advance Decision because they have lacked capacity to do so since 1 October 2007.  If you are aware of a person in such a position then you should seek further advice).

What limitations are there upon the effect of an Advance Decision?

An Advance Decision cannot be used to give effect to an unlawful act such as euthanasia or assisted suicide or any intervention with the express aim of ending life.

An Advance Decision which contains a request for certain treatment, as opposed to a refusal of treatment, will not be enforceable.

How does an Advance Decision differ from a Lasting Power of Attorney for health and welfare?

Since 1 October 2007, it has been possible for an individual in England and Wales aged 18 or over to create a Lasting Power of Attorney for health and welfare, appointing another individual (or individuals) known as an Attorney, aged 18 or over, to make health and welfare decisions on his or her behalf (before 1 October 2007, it having been possible to appoint an Attorney only to deal with property and financial affairs).  An Attorney acting under a Lasting Power of Attorney for health and welfare makes such decisions to the extent only that the person making the Lasting Power of Attorney is unable to make such decisions himself.  Decisions relating to health and welfare include where a person lives, what they wear, who they are to see (or be visited by) diet and health treatment.

A Lasting Power of Attorney for health and welfare is therefore a document much broader in scope than an Advance Decision which is designed purely to express refusal of specified treatment in specified circumstances.

The advantages of a Lasting Power of Attorney for health and welfare are that there is usually no need for carers or medical professionals to have to ascertain the meaning of an Advance Decision that does not precisely apply to the medical condition or proposed treatment in question.  The Lasting Power of Attorney for health and welfare authorises the Attorney to be the decision-maker and it is the Attorney's function to make decisions in the Donor's best interests.  It enables decisions to be made at the time the decision needs to be made rather than in advance.  An Attorney may consider a situation which has arisen and discuss it with medical professionals instead of the maker of an Advance Decision having to anticipate circumstances and decisions as is the case with an Advance Decision.

However, the disadvantages of a Lasting Power of Attorney for health and welfare (as opposed to an Advance Decision) are that the responsibility of having to make such decisions may be onerous for an Attorney, there may be no-one considered suitable to be an Attorney and the maker of a Lasting Power of Attorney for health and welfare may not be entirely certain that the Attorney will necessarily share their views on the decision which should be made in the future.

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