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Living wills: advance decision or directive
You can use an advance decision (also called advance directive) to indicate your wish to refuse all or some forms of medical treatment if you lose mental capacity in the future. You can't use it to request treatment.
A valid advance decision has the same effect as a refusal of treatment by a person with capacity: the treatment cannot lawfully be given - if it were the doctor might face civil liability or criminal prosecution.
Limitations on advance decisions
You can't use an advance decision to:
- ask for your life to be ended
- force doctors to act against their professional judgement
- nominate someone else to decide about treatment on your behalf
As with advance statements, bear in mind that new drugs or treatments may be introduced in the future so you may wish to allow for new treatments even if refusing a current one.
Does an advance decision have to be in writing?
An advance decision doesn't all have to be in writing. However, although witnessed verbal instructions may be respected, it's best to make them known to a senior member of a medical team. A written decision helps to avoid any doubt about what you wish to refuse. In any case, since April 2007 some aspects of advance decisions have to be in writing.
You should sign, date and have witnessed a written advance decision in the same way as for an advance statement.
A written advance decision could form part of a general advance statement, but it is clearest if it sits under a distinct heading, ideally 'Advance decision' or 'Advance directive, refusing treatment'.
Regulation of advance decisions from April 2007
The Mental Capacity Act 2005 came into force in April 2007 and forms the legal basis for advance decisions.
Valid advance decisions
From April 2007, to be valid an advance decision needs to:
- be made by a person who is 18 or over and has the capacity to make it
- specify the treatment to be refused (it can do this in lay terms)
- specify the circumstances in which this refusal would apply
- not have been made under the influence or harassment of anyone else
- not have been modified verbally or in writing since it was made
Refusal of life-sustaining treatment
Advance decisions refusing life-sustaining treatment will need to:
- be in writing (it can be written by a family member, recorded in medical notes by a doctor or on an electronic record)
- be signed and witnessed (it can be signed by someone else at the persons direction - the witness is to confirm the signature not the content of the advance directive)
- include an express statement that the decision stands 'even if life is at risk'
When might an advance decision not be followed?
A doctor might not act on an advance decision if:
- the person has done anything clearly inconsistent with the advance decision which affects its validity (for example, a change in religious faith)
- the current circumstances would not have been anticipated by the person and would have affected their decision (for example, a recent development in treatment that radically changes the outlook for their particular condition)
- it isnt clear about what should happen
- the person has been treated under the Mental Health Act
A doctor can also treat if there is doubt or a dispute about the validity of an advance decision and the case has been referred to the court.
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