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treatment which is to be referred to at a time when the person is incapable of expressing his or her wishes.
It is a basic principle of English law that a mentally competent person can refuse medical treatment even if this is sure to lead to their death. Medical professionals have a duty to respect a competent patient’s autonomy to make decisions in relation to their treatment.
An advance decision is therefore an extension of this principle. It is a decision to refuse treatment taken at a time when the individual is mentally competent to take effect at a time in the future when he or she is no longer mentally competent. It is not possible to demand a particular treatment under English Law. The advance decision will only come into effect when the individual loses mental capacity and can no longer make decisions for themselves.
There is no prescribed form for an advance decision. It can be oral or in writing, however, it must be in writing if it relates to the refusal of life sustaining treatment and has to state that life sustaining treatment is refused even if life
is at risk as a result. The statement must be signed, dated and witnessed. The advance decision does need to be very clear as to the type of medical treatment that is being refused.
As well as refusing treatment, the advance decision can include broader general statements about a person’s treatment preferences etc. These broader statements will act as guidance to medical staff when deciding what is in the person’s best interests but will not be binding on them.
An advance decision is a legally binding document and cannot be ignored
by medical professionals. However, it can be changed without any great formality and a simple word or change of behaviour can be enough to change its provisions. It is sensible though to ensure that any changes are in fact documented to avoid confusion.
It can be made in conjunction with a Health and Welfare LPA, but the individual has to be careful to make sure that the two are consistent as an attorney under an LPA is not bound to follow the terms of an inconsistent earlier advance decision. In addition, if the individual makes an advance decision after the LPA that is inconsistent this can also complicate matters.
As with a LPA, the advance decision cannot be used to require medical
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