LPAsWhy Make an Advance Decision?

A person has the right to refuse medical treatment in advance, should they lose capacity in the future. This is done through an advance decision, which is a formal method of refusing certain types of treatment made while the person still has capacity. This article provides a comprehensive overview of advance decisions, including their practical uses, and key considerations.

What is an advance decision?

An advance decision is a document made by a person refusing consent to the giving or continuing of certain medical treatment. This statement is made whilst they have capacity, in anticipation of a time in the future when they no longer have capacity.

Advance decisions are also commonly referred to as a living will or an advance directive.

Why make an advance decision?

If a healthcare professional is aware that the advance decision exists, the document is valid, and it applies in the current circumstances, they are bound to follow it even if they do not believe it is in the maker’s best interests. If a healthcare professional does not follow the document in these circumstances, they could face a civil action or even a criminal prosecution.

Without using an advance decision, if a person has lost capacity, it will be up to healthcare professionals to make decisions in what they believe is the person’s best interests.

Alternatively, a person may have made a Health and Welfare Lasting Power of Attorney (LPA), in such case the attorneys would make these decisions based on what they believe is in the donor’s best interests. A person making an advance decision can however refuse treatment even if it may not be seen in their best interests to do so.

An advance decision can be an alternative to a Health and Welfare LPA for a person who has specific medical treatment that they do not wish to receive but have no people that they want to name as attorneys.

Advance decisions are most commonly made by people diagnosed with a terminal or degenerative illness, or those with religious, spiritual or personal beliefs that are relevant to their medical treatment to refuse certain types of medical treatment.

What can’t be included?

A person cannot insist that a particular treatment is provided. The legal effect is limited to a refusal of consent to treatment. Any statements requesting that a particular treatment is used could however be written as a non-binding wish.

Commonly an advance decision will refuse life-sustaining treatment (such as CPR, ventilation, or artificial nutrition and hydration). If it does this, it must be in writing, signed by the person making it, witnessed, and include a statement that the refusal applies even if life is at risk

Illegal acts, such as euthanasia, cannot be requested.

Basic care cannot be refused. These are actions needed to keep them comfortable, such as food and water by mouth, basic hygiene and providing warmth. Such acts are not seen as medical treatment and therefore cannot be refused.

An advance decision refusing treatment for a mental disorder can be overruled if that person’s treatment is regulated under the Mental Health Act 1983.

Practical Considerations

The advance decision must clearly state which treatments are to be refused and in what circumstances. Vague statements are unlikely to be effective. It is important to be as specific as possible about both the treatment and the situation in which it should be refused.

Circumstances and medical advances change. It is best practice to review and (if necessary) update the document regularly. This is especially the case if the person making it has a new diagnosis, a change in health, or a significant life event. It is also important that family, carers, attorneys (if any), and healthcare professionals are aware of the advance decision and know where to find it.

An advance decision can be withdrawn or amended at any time while the person has capacity. There is no formal process for withdrawal, but it is best practice to do so in writing and to notify all relevant parties.

Conclusion

It is important to ensure that the advance decision is clear, regularly reviewed, and accessible to those who may need it. For those with strong views about particular treatments, or who do not wish to appoint attorneys, an advance decision can provide peace of mind.

 

If you have subscribed to our Quiz Membership 2025, please find this article’s quiz here. You must be signed into the partner area of our website to access this.