Advance Decision to Refuse Treatment

What is an advance decision to refuse treatment?

An advance decision or advance directive records a person's intentions about future medical decisions to refuse treatment. An advance decision is made whilst a person has capacity, meaning that they are still able to make decisions. An advance decision will specify a person's wishes about refusing medical treatment in the event that may lack the capacity to make those decisions in the future.

What is the difference between a will and an advance decision?

An advance decision is different from a will. A will sets out a person's intentions regarding their financial affairs after they die.

An advance decision or directive deals with a person's wishes to refuse treatment in certain circumstances, in the event that they are unable to make those decisions during their lifetime.

What is the difference between a power of attorney and an advance decision?

Under a power of attorney, a person provides the authority for another person to act and make decisions on their behalf:

• in England and Wales, an ordinary power of attorney is effective while a donor still has capacity. An ordinary power of attorney does not deal with medical decisions. A lasting power of attorney is used to enable an attorney to make decisions, including health and welfare decisions, on behalf of a donor if the donor loses capacity.
• in Northern Ireland, an ordinary power of attorney is effective while a donor still has capacity. An ordinary power of attorney does not deal with medical decisions. An enduring power of attorney is used to enable an attorney to make decisions, including health and welfare decisions, on behalf of a donor in the event that they lose capacity.
• in Scotland, a health and welfare power of attorney can be used to give an attorney the authority to make decisions in the event that the donor loses capacity.

In contrast, an advance decision sets out a person's future wishes about the refusal of treatment which will come into effect and will be considered by medical professionals in the event that they lose capacity.

Is it mandatory to have an advance decision?

No, it is not compulsory to hold an advance decision. Without an advance decision, medical professionals (and possibly the Court in the event of a dispute from family members) will be required to make a decision on behalf of the individual.

What does capacity mean?

Capacity refers to the ability of a person to make decisions. A person lacks capacity if they are unable to make decisions for themselves because of an impairment of, or disturbance in the functioning of the mind or brain.

What cannot be included in an advance decision?

An advance decision should not be used to:

• request assisted suicide/euthanasia
• request particular medical treatment - an advance decision is used to refuse treatment only*
• refuse basic care (not falling within the definition of treatment) - basic care includes things like shelter and warmth
• refuse future treatment in cases where a person is detained or subject to compulsory treatment under mental health laws

A person can mention preferences about treatment in the decision letter, but these will not be binding in any jurisdiction and may only be taken into account by a medical professional.

What are the prerequisites of an advance decision?

Before making an advance decision, it is necessary to check the following:

• Whether the decision-maker has capacity at the time of making the advance decision
• Any cross-over with a relevant lasting power of attorney, welfare power of attorney or enduring power of attorney (if the advance decision is made before a valid power of attorney of this nature, the advance decision should take precedent if the person loses capacity)

Who can make an advance decision?

A person who is over 18 and who has capacity can make an advance decision. Capacity refers to the ability of a person to make decisions.

A person lacks capacity if they are unable to make decisions for themselves because of an impairment of, or disturbance in the functioning of the mind or brain.

What can be the duration of an advance decision?

An advance decision can be made indefinitely and will continue until death. An advance decision should be reviewed and updated regularly, particularly when a person's circumstances change.

What has to be done once the advance decision has been finalised?

Once the advance decision has been signed in the presence of a witness:

• a copy should be stored and kept in a safe place
• the person's healthcare provider/GP should be provided with a copy

Is it necessary to register an advance decision?

If the person making the advance decision has a lasting power of attorney in England and Wales which refers to an advance decision, an advance decision should be sent to the Office of the Public Guardian (England and Wales).

If the person has a health and welfare power of attorney in Scotland, a person may wish to provide a copy of an advance directive to the Office of the Public Guardian (Scotland).

There is no register in Northern Ireland.

Is it necessary to have a witness for an advance decision?

Yes. The person making the advance decision should sign the letter and their signature should be witnessed. The witness should:

• be over the age of 18
• have capacity - meaning they are of sound mind and able to make legal decisions

Is an advance decision legally binding?

In England and Wales and Northern Ireland, an advance decision can be legally binding.

In Scotland, an advance decision is not legally binding but can be taken into consideration by doctors and medical professionals.

What should an advance decision contain?

An advance decision should:

• confirm the personal details of the decision maker – their name, address, date of birth, and GP
• explain that the letter is addressed to any treating doctor or professional and any family members of the decision-maker
• set out the relevant types of treatments that are refused

What laws apply to an advance decision?

The Mental Capacity Act 2005 applies to advance decisions in England and Wales.

The Adults with Incapacity (Scotland) Act 2000 applies to advance directives in Scotland.

The Mental Capacity Acy (Northern Ireland) 2016 applies in Northern Ireland.

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