The Mental Capacity Act 2005: Advance Decisions

This article summarises some of the key considerations in respect of Advance Decisions in helping medical professionals to determine whether that document may be valid and applicable. It by no means encompasses every scenario, and each case should be considered on its own merits. However, it is intended that the points outlined below can be considered in overview.

09/06/2014

Jane Bennett

Jane Bennett

Associate

This article summarises some of the key considerations in respect of Advance Decisions in helping medical professionals to determine whether that document may be valid and applicable. It by no means encompasses every scenario, and each case should be considered on its own merits. However, it is intended that the points outlined below can be considered in overview.

In the Mental Capacity Act 2005 ("the Act"), Advance Directives (sometimes referred to as living wills) are broadly known as Advance Decisions. 

Under the Act:

An “Advance Decision” is a decision made by an adult with capacity that if:

  • at a later time a specified treatment is proposed to be carried out by a person providing healthcare and
  • at the time he or she lacks capacity to consent to that treatment, then
  • the specified treatment is not to be carried out.

Key Points – Advance Decisions and Mental Capacity Act:

  • An Advance Decision only applies to refusals of treatment.  You cannot have an Advance Decision positively requiring treatment to be given.
  • The individual must have been 18 years old or more to make an Advance Decision.
  • The individual must have had capacity at the time of making the Advance Decision. 
  • The Advance Decision must clearly specify the treatment to be refused.
  • The Advance Decision must clearly specify the circumstances in which a refusal of treatment will apply (although non-scientific language will be acceptable).
  • An Advance Decision can be withdrawn or altered at any time if the individual has capacity.

Is the Advance Decision Binding?

To be binding the Advance Decision must be VALID and APPLICABLE. In considering this it is helpful to look at the following four concepts – incapacity, validity, applicability, and life sustaining treatment.

Incapacity

The Advance Decision will not be binding or come into effect if at the material time the person who made it still has capacity to give or refuse consent. The medical professional would simply ask the patient about treatment and obtain their consent in the usual way.

Validity

An Advance Decision will not be valid:

  • if the individual withdrew the Advance Decision at any time when he or she had capacity to do so.
  • if the individual has subsequently acted in a way clearly inconsistent with the Advance Decision.
  • if the Advance Decision is overridden by a later and applicable Lasting Power of Attorney (which entitles those appointed to take health decisions on behalf of the individual in the current situation).

Applicability 

The Advance Decision is not applicable if:

  • Treatment is not that specified in the Advance Decision.
  • Any circumstances specified in the Advance Decision are absent.

Life Sustaining Treatment

What the Act says is that:

  • An Advance Decision will not be applicable to a refusal of life sustaining treatment unless it is verified by a statement to the effect that it is to apply to that treatment, even if life is at risk.
  • This must be in writing, signed and witnessed. 

Impact of the Advance Decision

So what is the impact of an Advance Decision?

If an Advance Decision is valid and applicable, it has the effect of a contemporaneous refusal of treatment by an adult with capacity. 

It is for Health Professionals to decide if an Advance Decision is valid and applicable.  If there are concerns, and there is time, there is a duty to make reasonable enquiries of those who may know – i.e. family, carers, the GP etc.  Similarly if Health Professionals suspect that an Advance Decision exists, reasonable efforts, time permitting, should be made to find out what it says, although Healthcare professionals can act in an emergency. However health professionals are not expected to go on a trawling exercise to look for an Advance Decision. The onus is still very much on the individual to ensure that the existence of an Advance Decision is known.

If the medical professional is not satisfied that an Advance Decision is valid or applicable in the current circumstances which present, there will be no liability incurred by that medical professional for providing treatment.

Likewise if a medical professional reasonably believes that a valid and applicable Advance Decision is presented, there will be no liability for not providing treatment in accordance with the document.

The key to the above is ensuring that the medical professional clearly documents his or her rationale as to how that determination was reached.  It is this which offers the best legal protection should any subsequent claim be brought.

In an emergency where there is doubt about an Advance Decision, treatment can be provided. However if there is time, cases of ambiguity or disagreement can be referred to Court, and in the meantime treatment necessary to preserve life or prevent serious deterioration may be given. 

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