What is an advance decision?
The Act makes it clear that somebody who is aged 18 or over and has the necessary mental capacity can refuse specified medical treatment for a time in the future when he or she may lose the capacity to make the decision. This is known as an advance decision. The Act’s powers are restricted explicitly to advance decisions to refuse treatment.
An advance refusal of treatment is binding if:
- the person making the decision was 18 or older when it was made, and had the necessary mental capacity
- it specifies, in lay terms if necessary, the specific treatment to be refused and the particular circumstances in which the refusal is to apply
- the person making the decision has not withdrawn the decision at a time when he or she had the capacity to do so
- the person making the decision has not appointed, after the decision was made, an attorney to make the specified decision
- the person making the decision has not done anything clearly inconsistent with the decision remaining a fixed decision.
Can advance decisions extend to refusing life-sustaining treatment?
Although advance decisions can be oral or in writing, an advance refusal will only apply to life-sustaining treatment where it is in writing, is signed and witnessed, and contains a statement that it is to apply even where life is at risk. In our view advance decisions cannot be used to refuse basic care, which includes warmth, shelter and hygiene measures to maintain body cleanliness. This also includes the offer of oral food and water, but not artificial nutrition and hydration.
In an emergency or where there is doubt about the existence or validity of an advance decision, doctors can provide treatment that is immediately necessary to stabilize or to prevent a deterioration in the patient until the existence, and the validity and applicability, of the advance decision can be established.
Do advance decisions apply to individuals subject to compulsory mental health legislation?
Where a patient is subject to compulsory treatment under mental health legislation, an advance refusal relating to treatment provided for the mental disorder for which compulsory powers have been invoked will not be binding, save in the case of electro-convulsive treatment (ECT) although the treating professional should take such a decision into account. This could include, for example, considering whether there are any other treatment options available that are less restrictive. An agreed advance treatment plan for mental health conditions can be helpful and would represent a kind of advance statement, although it would not be binding during periods of compulsion.
Card 9 (PDF)