Advance decisions

Advance decisions

This information applies only to England, Wales and Northern Ireland.

What is an advance decision?

An advance decision is a decision to refuse treatment.

An adult with mental capacity can refuse treatment for any reason, even if this might lead to their death. However, no one is able to insist that a particular medical treatment is given, if it conflicts with what the medical professionals providing the treatment conclude is in the patient's best interests.

An advance decision to refuse treatment must indicate exactly what type of treatment you wish to refuse and should give as much detail as necessary about the circumstances under which this refusal would apply. It is not necessary to use precise medical terms, as long as it is clear what treatment is to be refused in what circumstances.

An advance decision can only be made by someone over age 18 who has the mental capacity to make the decision. This means they must be able to understand, weigh up and retain the relevant information in order to make the decision to refuse treatment; and they must then be able to communicate that decision.

An advance decision does not have to be in writing, unless it is a decision to refuse life-sustaining treatment. Oral instructions can amount to a valid advance decision, but there is more risk that an oral refusal of treatment would not be carried out. The person providing treatment may not be aware of it, or there could be uncertainty about its validity or applicability.

To avoid uncertainty over the validity of an advance decision, you should put it in writing.

Advance decisions to refuse life-sustaining treatment

England & Wales

If you want to make an advance decision to refuse life-sustaining treatment, it must meet certain legal requirements. Life-sustaining treatment is defined in the Mental Capacity Act 2005 as treatment which, in the view of the person providing health care to the person concerned, is necessary to sustain their life. This could include artificial nutrition and hydration to someone who cannot eat or drink by mouth.

The legal requirements for a valid advance decision to refuse life-sustaining treatment are as follows:

  • The decision must be in writing
  • You must sign the document. You can instruct someone to sign it on your behalf in your presence if you can't sign it yourself
  • Your signature (or the signature of the person signing on your behalf) must be witnessed. The witness must also sign the document in your presence
  • You must include a written statement that the advance decision is to apply to the specific treatment even if your life is at risk

Northern Ireland

The Mental Capacity Act (NI) 2016 has been passed, but not yet fully implemented. Section 9 of this Act will give some limited recognition to advance decisions, but on the whole Northern Ireland will still be guided by the common-law position. Under the common-law position any advance decision where life-saving treatment is refused will be heavily scrutinised. It is highly likely that only written evidence will be accepted, and that evidence must be applicable to the current circumstances. If there is a doubt, the treatment is likely to be given.

While not a legal requirement, it is recommended that you undertake the following formalities:

  • Put the decision in writing.
  • Sign the document yourself, or instruct someone to sign it on your behalf in your presence if you can't sign it yourself.
  • Have your signature (or the signature of the person signing on your behalf) witnessed. They must also sign the document in your presence.
  • Include a written statement that the advance decision is to apply to the specific treatment, even if your life is at risk.

If an advance decision is found to be binding then it is to be treated the same as an instruction from a competent adult at the time, and refusal to comply with the instruction could result in legal action for battery or even criminal assault against the medical professional or Trust.

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