What is an advance decision?
An advance decision is a statement which explains what medical treatment you would not want to have in the future if ever you are not able to make decisions for yourself. This statement would come into play if it was decided that you lacked capacity as defined by the Mental Capacity Act 2005. It is different from a lasting power of attorney (LPA) which concerns what sort of care you do want.
It is popularly known as a 'living will' but unlike a proper will it is not concerned with property or finances, only with healthcare.
It can deal with all future treatment, not just that which may be immediately life-saving. Types of treatment which you may want to cover in an advance decision if you lose mental capacity include:
- Whether you want fluids or feeding (nutrition) through a drip.
- Whether you want to be revived (resuscitated) if your heart stops beating (cardiopulmonary resuscitation, or CPR).
- Whether you want life-saving treatment if you have brain damage from a stroke, head injury or dementia.
- Any other types of treatment prohibited by your culture or religion (for example, blood transfusion for a Jehovah's Witness).
The legal position
An advance decision is legally binding in England and Wales in the sense that if a doctor gave you treatment against the wishes you expressed, they would face legal action. Except in the case where you decide to refuse life-saving treatment, it does not have to be written down. However, most are written down and a written document is less likely to be challenged.
In Scotland and Northern Ireland the situation is somewhat different. Advance decisions are governed by common law rather than legislation. However, providing the decision was made by an adult with capacity and clearly sets out the person's intentions, it is highly likely that a court would consider it legally binding.
Whilst you still have mental capacity, your views overrule anything you may have put in an advance decision.
You may sometimes see the term 'advance statement'. This is an expression of a person's desires and may refer to your values, principles and religious beliefs. It is not legally binding but may act as a guide to a doctor who has to make a decision on a patient's behalf at a time when the patient lacks mental capacity
What are the limits of an advance decision?
You cannot use an advance decision to:
- Ask for a particular medical treatment.
- Ask for something that is illegal (for example, assisted suicide).
- Choose someone to make decisions for you, unless that person is given lasting power of attorney (LPA).
- Refuse treatment for a mental health condition.
A doctor may not follow an advance decision if:
- You make changes which make the decision invalid (for example, a change to a religion which prohibits the refusal of treatment).
- Better treatment has been discovered since the decision was issued (unless you say in it that you don't want to benefit from such advances).
- The wording is not relevant to your current illness.
A decision may not be valid:
- If it is written but not signed.
- If there is reason to doubt that it is authentic (for example, if it was not witnessed).
- If it is felt that you were under pressure when you made it
- If there is doubt about your state of mind at the time you made it.
Further reading and references
Menon S; The mental capacity act: implications for patients and doctors faced with difficult choices. Ann Acad Med Singapore. 2013 Apr42(4):200-2.
Advance decision (Living wills); Alzheimer's Society
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