What is an Advance Decision? Under the Mental Capacity Act 2005 an advance decision to refuse treatment can be made by an adult that has capacity and this can formerly be recorded. The advance decision would take effect when and if the person making the decision lacked capacity to consent to treatment. It would set out circumstances in which specific treatment is proposed to be carried out or continued is not to be carried out or continued.

What is the effect of an advance decision? It is a binding refusal of treatment set out in the decision that takes effect where a person subsequently lacks capacity to consent or refuse treatment.

Must an advance decision be in writing ? An advance decision need not be in writing unless it relates to life sustaining treatment. It is prudent to make all advance decisions in writing and ensure the decision is clear and unambiguous. Where life sustaining treatment is to be refused the decision must be in writing and must contain a statement “to the effect that it is to apply to that treatment even if life is at risk” the document must also be signed. The person making the decision must have capacity to make the decision.

Will refusing to act in accordance with a valid and applicable advance decision result in liability? Yes, under section 36 of the Mental Capacity Act 2005 a person is liable in law for refusing to act in accordance with a valid and applicable decision that they are aware of, unless a persons health is being prevented from deterioration whilst the Court of Protection makes a decision about the decisions validity and applicability.

Can an advanced decision be challenged or clarity sort from the Court? Yes, The Court of Protection can make a Declaration under s26(5) of the Mental Capacity Act 2005 as to whether an advance decision exists is valid and applicable to the particular treatment.

Must and advance decision be drafted by a solicitor? No, but given you may literally be signing your life away and the formal requirements required along with the clarity needed when drafting the decision it is prudent to instruct a solicitor. If you require assistance do not hesitate to contact Damian Clode of Clodes Solicitors.

Can an advance decision be made to set out treatment to be received? No, a person making an advance decision cannot make a binding decision in advance about what treatment to receive only what treatment to refuse.

Can an advance decision to refuse care be made? No, an advance decision can only be made about treatment which includes diagnostic or other procedure.

Can an advance decision be made to refuse treatment at a particular hospital ? No, The right is that to refuse treatment not to refuse treatment by a particular Health Care Provider.

Whether you would like advice about drafting a valid advanced decision or would like to challenge an advance decision or seek a declaration as the decision is not on the face of it clear contact us today for expert mental health law advice.

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