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Advance decisions and proxy decision-making in medical treatment and research

June 2007

This guidance covers the law and ethical issues involved in competent individuals making advance decisions about their later medical treatment and proxy decisions about medical treatment made by other people on behalf of adults who lack mental capacity. When they are mentally competent, patients decide for themselves whether or not to accept the medical treatments recommended by health professionals. This guidance is about what happens when that mental ability to make a valid decision is lost.

Part 1 – Assessing mental capacity
The concept of mental capacity; assessing mental capacity; the law relating to mental capacity; understanding “best interests”

Part 2 – Advance decisions
Definitions; Who might make an advance decision?; Legal position; Legal position on capacity needed to make advance refusals of medical treatment; Criteria for legally valid advance refusal of treatment; Additional criteria for advance refusal of life-prolonging treatment; Common law criteria for validity of advance refusal of treatment; Advance refusal of “basic care”; Emergencies; Advance requests; Legal position on advance requests; Practicalities regarding any kind of formal advance decisions; Provision of information; Voluntariness; Verbal advance decisions and verbal amendments; Written advance decisions; Health professionals witnessing advance decisions; Reviewing advance decisions; Storage of advance decisions; Assessing validity of advance decisions; Implementation of advance decisions; Disputes and doubts about validity; Conscientious objection

Part 3 – Proxy decision-making

• England & Wales: Legal position on proxy consent to treatment decisions; Lasting powers of attorney (LPAs); Appointing an attorney; Duties of attorneys; Role of health professionals regarding attorneys; Independent mental capacity advocates (IMCAs); Disputes, Court of Protection, deputies.
• Scotland: Legal position on proxy consent to treatment decisions; Welfare attorneys and welfare guardians; Listening to relatives; Disputes, the Sheriff & Mental Welfare Commission.
• Northern Ireland: Legal position on proxy consent to treatment decisions.
• Proxy consent to research.

Download the document as a pdf from the link on the right. (163k)