What is an advance decision and why make one?

Also known as Living Wills or Advance Directives, an Advance Decisions is the legal mechanism made by a person refusing consent to the giving or continuing of certain medical treatment. This statement is made whilst they have capacity, in anticipation of a time in the future when they no longer have capacity.

Advance Decisions were given a statutory footing in S24-26 Mental Capacity Act 2005 (MCA), which came into effect from 1 October 2007. The courts did however recognise Advance Decisions before this under common law and an advance decision made before this date would be valid if it complies with the rules under the Mental Capacity Act 2005.

If a healthcare professional is aware of that the Advance Decision exists, the Advance Decision is valid, and it applies in the current circumstances, they are bound to follow it even if they do not believe it is in the maker’s best interests. If a healthcare professional does not follow the advance decision in these circumstance, they could face a civil action or even a criminal prosecution.

Advance Decisions are commonly made by people diagnosed with a terminal or degenerative illness, or those with religious, spiritual or personal beliefs that are relevant to their medical treatment to refuse certain types of medical treatment. If that person later loses capacity, without the use of an Advance Decision to refuse medical treatment, healthcare professionals would act in what they believe is in the person’s best interests. This may not be what the person would have wanted.

Without using an Advance Decision, if a person has lost capacity it will be up to healthcare
professionals to make decisions in what they believe is the person’s best interests. Alternatively, a person may have made a Health and Welfare Lasting Power of Attorney (LPA), in such case the attorneys would make these decisions based on what they believe is in the donor’s best interests. A person making an Advance Decision can refuse treatment even if it may not be seen in their best interests to do so.