Advance statements and advance directives

Advance statements and advance directives

Advance statement

What is an advance statement?

An advance statement is a statement of what mental health treatment you would like to receive or not receive in the event of supervening incapacity as a result of mental illness

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

An advance statement can be made by someone over age 16 who has the mental capacity to make the decision. It is possible that somebody younger could make an advance statement, but the law is not clear on that point and if it is relevant to you, you should seek legal advice. 'Mental capacity' 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 statement has to be in writing, and comply with signing formalities.

  • It must be in writing
  • You must sign the document.
  • Your signature (or the signature of the person signing on your behalf) must be witnessed
  • The witness must certify on the document that in their opinion the person making the advance statement has capacity to do so

The following people can act as witnesses:

A clinical psychologist entered on the British Psychological Society's register of chartered psychologists;

A medical practitioner;

An occupational therapist registered with the Health Professions Council;

A person working in, or managing, a care service like a care home

A registered nurse;

A social worker;

A solicitor.

To cancel an advance statement it is necessary that the same formalities are observed.

Advance directive

What is an advance directive?

This is a general statement of your wishes and views. It allows you to state your preferences and indicate what treatment or care you would like to receive should you, in the future, be unable to decide or communicate your wishes for yourself. It can include non-medical things such as your food beliefs or preferences or whether you would prefer a bath to a shower.

It could reflect your religious or other beliefs and any aspects of life which you particularly value. It can help those involved in your care to know more about what is important to you. It might well be considered by the people providing your treatment when they determine what is in your best interests, but they are not legally bound to follow your wishes.

Advance directives can also be used to let the people treating you know who you would like to be consulted at a time a decision has to be made, if you are unable to make that decision yourself.

Making a living will gives you the opportunity to incorporate both an advance directive and an advance statement. Only an advance statement has legal effect to the extent described above, but an advance directive should be taken into account when deciding what is in your best interests.

Why make an advance directive?

You may wish to make an advance directive if you have strong feelings about a particular situation that could arise in the future. This might relate to having a limb amputated following an accident or having a blood transfusion.

However, people in good health find it hard to imagine the whole range of situations that might befall them or the impact on them of refusing particular treatments, so it may be more effective for living wills to be compiled in the early stages of a disease or disability, as this will allow doctors to give realistic guidance about possible future situations.

Where you have, for example, been told that you have a terminal illness or form of dementia, you may wish to prepare an advance directive indicating the type of treatment you would not want to receive in the future. Making an advance directive may give you some peace of mind in knowing that your wishes will probably be taken into account if you are unable to take part in the decision making process at the relevant time.

Considering making an advance directive provides an opportunity to talk to and ask questions of your medical team during the early stages of an illness rather than delaying it until it is more difficult to participate. It can also provide an opportunity to discuss what may be difficult issues with family and friends.

Remember, though, that many serious illnesses such as cancer, failure of major organs (kidney, heart, liver, or lung), and serious brain disease such as Alzheimer's disease may be considered irreversible early on. There is no cure, but the patient may be kept alive for prolonged periods of time if the patient receives life-sustaining treatments and continue to enjoy some quality of life. Late in the course of the same illness, the disease may be considered terminal when, even with treatment, the patient is expected to die. You may wish to consider which burdens of treatment you would be willing to accept in an effort to achieve a particular outcome, and at what point in time and in what circumstances, you would consider further treatment effort to be futile and/or that your quality of life would be intolerably low. This is a very personal decision that you may wish to discuss with your doctor, family, or other important persons in your life.

You do not have to make an advance directive. You may decide to leave it to the healthcare professionals providing your treatment to decide what is in your best interests. When deciding this, they should take into account any evidence they have of your past wishes, your beliefs and values; and they should consult your friends, family and carers where appropriate. They may decide that what is in your best interests is not the same as what you would have decided to do yourself.

Alternatively, you can make a welfare power of attorney and appoint a person or persons of your choice to take these decisions on your behalf.

What an advance directive cannot be used for

An advance directive cannot be used to:

  • Ask for anything that is illegal such as euthanasia or for help to commit suicide
  • Demand care the healthcare team considers inappropriate in your case
  • Refuse the offer of food and drink by mouth
  • Refuse the use of measures solely designed to maintain your comfort such as providing appropriate pain relief, warmth or shelter
  • Refuse basic nursing care that is essential to keep you comfortable such as washing, bathing and mouth care

Who to consult about an advance directive

It is always advisable to discuss your intentions with a medical professional such as your GP and your family and friends.

If you have a terminal illness, you may wish to speak to the doctor involved in your care. They can help you understand the consequences of refusing or opting for a particular treatment and relate specific decisions to the likely course of your illness. This doctor can also help you express your wishes clearly and verify you were competent at the time you prepared and signed the document.

Reviewing your advance directive

It is important for the people providing your treatment to feel confident that you have not changed your mind since your advance directive was made. If new or improved medical treatments are now available, or your personal circumstances have changed, its validity may be questioned if you signed it many years ago. You will also want to check it on a regular basis to be sure it continues to reflect your views.

Therefore a regular review is advisable. The frequency with which you do this will depend on your particular circumstances and state of health.

You can change your advance directive at any time while you still have capacity to do so.

Notification of advance directives

You should take steps to make sure that the people providing your treatment will be aware of your advance directive at the relevant time.

This could mean discussing it with your GP, or other treating doctors, while you still have capacity to do so, and making sure that a copy of your directive is kept in your medical notes. It would also be helpful to make sure that your family and friends are aware of the directive and possibly provided with a copy of it. If you change or cancel your advance directive or make a new one, you should make sure that relevant persons are informed.

Advance decisions and Welfare Powers of Attorney

You can set up a Welfare Power of Attorney (WPA) to give one or more people the power to make decisions about your personal welfare, including medical treatment, if you do not have mental capacity to make the decision yourself.

If you have made an advance directive or advance statement, this will be superseded if you later create a WPA giving someone else the power to refuse medical treatment on your behalf, when you no longer have capacity to make that decision yourself.

If you make an advance directive or advance statement after creating a WPA, this will give guidance to your chosen attorney and may help the attorney to decide what you would have wanted, so long as the attorney does not form the view that you might have changed your mind since the advance directive was signed.

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