Advance decisions – refusing future medical treatment
How advance decisions can be made now to refuse medical treatment in the future.
Introduction
Advance decisions are the modern equivalent of ‘living wills’ or ‘advance directives’ and are governed by the Mental Capacity Act 2005. An advance decision allows a person to make a legally binding decision now to refuse the giving or continuation of specific medical treatments in the future in case they lose capacity to make that decision when treatment is required.
Essentially, an advance decision allows a person to say, “If I am incapacitated and suffering from this condition in the future, I do not consent to receiving these specified medical treatments.” This way, you can let family members, carers and healthcare workers know your wishes to refuse certain medical treatments in case you cannot make decisions or communicate your wishes in the future when treatment is proposed.
Advance decisions can only be used to refuse medical treatment; they cannot be used to require treatment to be given.
Why make an advance decision?
Advance decisions are particularly useful where a person has a terminal illness or degenerative condition and may become incapacitated as a result. A person may also choose to make an advance decision if they have certain religious, spiritual or moral beliefs about medical treatments.
Without an advance decision in place, the court can rule that medical treatment should be given, including life-sustaining intervention. Therefore, if you wish not to receive particular types of treatment in the future in the event that you are suffering from some specific, listed health conditions, then advance decisions are a way of recording such wishes. They can be amended or withdrawn at any time.
How is an advance decision made?
To make an advance decision, a person must be at least 18 years old and have mental capacity. The specific treatments being refused must be provided in the advance decision. This can include life-sustaining treatments, such as ventilation, cardiopulmonary resuscitation (CPR) and artificial nutrition and hydration. However, ‘treatments’ would not include basic care, such as washing or spoon-feeding a person. The decision-maker can also set out the exact circumstances in which a specified treatment is to be refused, but they do not have to.
Advance decisions must comply with certain statutory requirements to be legally binding. Crucially, the advance decision must be applicable, meaning the treatment required in the future must be the exact same treatment that was refused in the advance decision. What’s more, if any circumstances are specified in the advance decision, those exact circumstances must be present when the treatment is proposed in the future. There cannot be any new, unexpected circumstances that may have affected the decision had they been known at the time, such as new medical treatments. If these requirements are not met, medical practitioners can overrule an advance decision and, although a non-binding advance decision would be considered, treatment decisions would ultimately be made based on what is in the patient’s best interests rather than what their wishes may be.
Whilst the concept of advance decisions is straightforward, this is a fairly complex area of law. It is important that advance decisions are drafted properly to meet the statutory requirements and to cover all possible treatments and circumstances that may arise in the future. If you are interested in making an advance decision or if you would like further advice about your options, please contact the head of our Wills, Trusts and Estates team, Rob Crowther, at [email protected] or on 0118 951 6251.
