Life and Death - Deciding in Advance
July 2008
In this article...
A patient does not want to be resuscitated in the event of cardio pulmonary arrest and wants to make an advance decision to that effect
that is compliant with the Mental Capacity Act (MCA) 2005. The MCA 2005 has codified rather than substantially changed the law in relation to advance decisions.
Jane Bennett takes a look at some of the factors
healthcare professionals should weigh up when considering whether an advance decision is binding.
What is an advance decision?
An advance decision is a binding refusal of certain kinds of treatment as specified by the person making the advance decision.
When does it come into effect?
An advance decision will come into effect if at the material time the person who made that advance decision does not have capacity to give or refuse consent.
Applicability
An advance decision will not be applicable if:-
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The circumstances specified in the document are absent |
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The treatment is not that specified in the advance decision |
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There are reasonable grounds for believing that circumstances exist which the patient did not anticipate and which would have been likely to have affected the decision. |
Validity
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An individual must have capacity to make an advance decision and be 18 years of age |
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An advance decision only applies to a refusal of treatment. An individual cannot positively require treatment to be given |
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An advance decision does not apply to the provision or basic care for example the provision of water |
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The advance decision must clearly specify the treatment to be refused |
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The advance decision should clearly specify the circumstances in which a refusal of treatment will apply |
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An advance decision will not be valid if an individual acts in a way inconsistent with that decision. |
Life sustaining treatment
An advance decision will not be applicable to life sustaining treatment unless it is:-|
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In writing |
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Verified by a statement to the effect that it is to apply even if life is at risk |
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Signed by the patient |
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Witnessed by a third party. |
Action points for healthcare professionals
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If there are concerns the healthcare professional should make enquiries of those who may know |
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If healthcare professionals suspect that an advance decision exists, reasonable efforts, time permitting, should be made to find out what it says although action can be taken in an emergency. If there is time cases of doubt should be referred to the Court of Protection |
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If a healthcare professional is not satisfied that an advance decision is valid or applicable in the circumstances, no legal liability for providing treatment will be incurred. Likewise if a healthcare professional reasonably believes that a valid and applicable advance decision does exist, there will be no liability for withholding treatment in accordance with its terms |
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It is for the patient to make staff aware of the existence of an advance decision |
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If the advance directive is to be kept in the patient records, there needs to be a process in place to highlight its existence if the patient receives treatment |
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Trusts should advise patients to take independent advice and should not act as an independent third party witness to an advance directive. |
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