Advance Decisions to refuse medical treatment

An Advanced Decision to refuse medical treatment (An "Advanced Decision") is a statement made by a person who must have capacity to make it and be over 18, to refuse consent to medical treatment in anticipation that in future he or she may lack the capacity to refuse such treatment.

If such an Advance Decision involves refusal of life sustaining treatment the statement must be in writing and signed as a Deed.

A properly drawn Advance Decision will have the same effect as an express refusal of treatment by a patient with capacity to refuse that treatment.

A doctor or other health care professional who is satisfied with the validity and relevance of an Advance Decision in relation to a person lacking capacity to give or refuse consent to the treatment in question must abide by the Advance Decision to refuse the treatment.

The recognition by the law of the validity of an Advance Decision acknowledges that a mentally competent person has an absolute right to refuse consent to medical treatment for any reason, rational or otherwise, or for no reason at all. If a person has lost capacity any previous valid direction made by them when they were competent to do so should be respected.

With technological advances in medicine increasing use is being made of Advance Decisions by those who would prefer not to have treatment which may be invasive and have the effect of artificially extending life without regard to the quality of that life.

It is advisable for anyone considering making an Advance Decision to discuss matters with a health care professional e.g. their GP or a doctor closely involved with current health care and treatment. Such a discussion could encompass the likely treatment options and possible future medical interventions in the light of any condition that may exist or may develop. There may be treatments which a person would wish to consent to and other treatments which the same person would wish to refuse.

Do not resuscitate ("DNR") issues can also be discussed with the GP.

An alternative to completing an Advance Decision would be a Health and Welfare Lasting Power of Attorney ("LPA") by which a person ("the Donor") appoints one or more Attorneys who would be empowered to make such decisions about treatment (including life sustaining treatment) in the event that the Donor lacks the capacity to be consulted.

There will be occasions where there is an Advance Decision and a Health and Welfare LPA, although it is important that these do not clash.

A Health and Welfare LPA can only be used once it has been registered by the Office of the Public Guardian and if the Donor lacks mental capacity.

Both documents are subject to special formalities. Please contact the Private Client Team at Hughes Paddison for further assistance and guidance.