END OF LIFE LAW: ADVANCE DECISIONS
An Advance Decision is a legally binding document which allows someone in England and Wales to specify medical treatments that they wouldn’t want, if they lost mental capacity in the future. Scotland does not have a legally binding equivalent, but it is likely that doctors would follow someone’s Advance Decision (called an Advance Directive in Scotland) if it existed.
Having an Advance Decision can be of great benefit, because if you become seriously ill your wishes are more likely to be respected, you can avoid your family and friends feeling pressured into making critical care decisions about you, and writing an Advance Decision might prompt a wider conversation about your end-of-life preferences.
In England and Wales, Advance Decision Assistance and Compassion in Dying both offer free online sources to create an Advance Decision. In Scotland, Friends at the End also provide a one-on-one service to help people complete Advance Directives.
HOW DO ADVANCE DECISIONS WORK?
Although Advance Decisions cannot be used to demand that you receive specific treatments in the future, they can be used to refuse specific treatments. For example, if someone did not want antibiotics or a feeding tube when they became terminally ill, a valid Advance Decision would require a doctor to respect their wishes, even if they lacked the mental capacity to make that decision for themself.
WHAT MAKES AN ADVANCE DECISION VALID?
A full breakdown of requirements for a legally valid Advance Decision can be found under S24 of the Mental Capacity Act 2005. But, broadly speaking an Advance Decision is valid if:
- It is made by someone who is at least 18 years old
- It is created at a time when someone has mental capacity
- It is in writing, signed, independently witnessed, and dated
- It specifies the precise treatments an individual would not want and in which circumstances they would not want them.
It is also advisable to give a copy of an Advance Decision to a close friend or relative, to ask your GP to add a copy to your medical notes, or to ask a hospital care team to include your Advance Decision within your case notes. Finally, you should also review your decision regularly to ensure that it still reflects your wishes as they stand today.
ARE THERE CIRCUMSTANCES WHERE AN ADVANCE DECISION DOESN’T HAVE TO BE FOLLOWED?
An Advance Decision cannot be used to refuse what is known as ‘basic care’. This means you cannot use an Advance Decision to refuse food, warmth, or basic hygiene, but you can refuse to be fed artificially.