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November 2022
What is an Advanced Decision?
An advance decision (“living will”) to refuse future
medical treatment, should the patient then lack capacity can be made by a person who is over 18 and who has capacity to do so.
A valid and applicable Advance Decision to Refuse Treatment (ADRT) must be specific to the treatment in question. An ADRT has the same force as a contemporaneous decision and as a medical professional, you must follow an advance decision if it is valid and applies to the decision that needs to be made. If you do not follow an advance decision, you could be charged with committing a crime or civil liability.
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Who can make an ADRT
- An advance decision can be made by an adult over the age of 18 who has capacity.
- It can only be made by a person with capacity to refuse
treatment in the future; it cannot demand specific treatments.
- It will only apply when the person lacks the capacity to consent to, or refuse this treatment.
- The decision may be either written or verbal. However, when it is in relation to life-sustaining treatments, it must be written, signed and witnessed, and must contain "a clear, specific
written statement from the person making the advance decision that it is to apply to the specific treatment even if life is at risk"
- An advance decision can be amended or withdrawn at any time.
Chapter 9 of the MCA Code of Practice explains the procedures that must be followed if someone wishes to make an advance decision to refuse medical treatment to come into effect when they lack capacity to refuse the specified treatment.
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What can a ADRT overrule?
A valid advance decision overrules:
- The best interests provision, which would otherwise allow healthcare professionals to give treatment they believe is in the individual’s best interests; therefore, you must follow an advance decision, even if you do not believe it is in the patient’s best interests.
- The decision of any personal welfare Lasting Power of Attorney (LPA), made before the advance decision was made.
- The decision of any court-appointed deputy.
The Court of Protection has no power to overrule a valid and applicable advance decision to refuse treatment. However, a valid and applicable advance decision to refuse treatment must be specific to the treatment in question and has the same force as a contemporaneous decision.
What should an ADRT contain?
An advance decision can only be made by a person with capacity and can only refuse treatment in the future; it cannot demand specific treatments.
The statement may set out the circumstances in which the refusal should apply. It will only apply when the person lacks the capacity to consent to, or refuse this treatment. The decision may be either written or verbal.
When it is in relation to life-sustaining treatments, it must be written, signed and witnessed, and must contain “a clear, specific written statement from the person making the advance decision that it is to apply to the specific treatment even if life is at risk” (MCA Code of Practice). It can be amended or withdrawn at any time.
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Guidance for staff and professionals
It is the responsibility of the person making the advance decision to make sure the healthcare professionals treating them are aware of any decision that has been made. It is recommended that the individual informs their family and GP. Some people will carry a
card or wear a bracelet to alert you to the fact that they have an advanced decision.
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For more information....
You will find more information on our website including a range of MCA resources for practitioners. Information for members of the public is also available on the website.
LPA Information Leaflet published by the Office of the Public Guardian.
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