Advance decisions

What are they?

A mentally capable adult has a right to refuse any given medical treatment. This right extends to refusals made ahead of time which can be documented in the form of an "advance decision".

An advance decision, also known as a living will and, formerly, an advance directive, is a legally binding written statement expressing an individual's wishes in respect of the extent and nature of the medical treatment they would find acceptable in specified circumstances should they lose mental capacity in the future and then be unable to express their own wishes.

The statement needs to include clear and specific directions to the medical practitioner in respect of the treatments to which it will apply.

A well drafted advance decision will legally protect your right to refuse unwanted treatment at a time when you might otherwise be unable to do so.

Why are they beneficial?

If, for example, you have strong sentiments with regard to not receiving life-sustaining treatment (perhaps in the event of a serious debilitating illness from which you are unlikely to recover) then documenting an advance decision is an opportunity to protect your wishes before you become incapacitated.

Additionally, the advance decision can provide great relief to your family, attorneys and future care team from the burden of a difficult judgment as it gives them an appreciation of when you would prefer not to be treated in such circumstances and allows them to respect your wishes.

What are the requirements?

An advance decision will only be valid if the following statutory requirements are met:

  1. the person making the advance decision must have mental capacity to do so and be over 18;
  2. the individual must clearly specify what medical treatment they wish to refuse;
  3. the circumstances in which the treatment should be refused must be clearly specified; and
  4. the document must be correctly executed.

Particular attention needs to be paid to the wording that identifies the treatments to which the decision relates as precise language is required in order to safeguard the validity of the document.

Can they be ignored?

An advance decision can be amended or withdrawn by the person who made it at any time provided they have mental capacity to do so. If, however, the advance decision continues to reflect the individual's wishes, care must be taken not to do anything else that is clearly inconsistent with the advance decision as this can also effect a withdrawal.   For instance, the individual should take care not to inadvertently cancel the binding effect of its provisions (unless that is desired) by making a Health and Welfare LPA ("HWLPA").  We recommend that expert advice is taken if considering making both an advance decision and a HWLPA.It is possible to have both, but the order in which these are created (and, in the case of the LPA, registered with the Office of the Public Guardian) is important and will determine which takes precedence.

Failure by healthcare professionals to follow an individual's wishes as expressed in a legally valid advance decision of which the healthcare professional is aware is likely to constitute a criminal office under English law.

How can we help?

If you are interested in making an advance decision, perhaps along with a HWLPA, you can make an appointment with us to discuss your wishes and our specialist team will be able to advise the best way forward in creating a legally binding document.