An advance decision, sometimes referred to as a “living will” has been given authority by the Mental Capacity Act 2005. Advance decisions may also be called an advance refusal and advance directive. It can be distinguished from a health and welfare lasting power of attorney, which in effect appoints a healthcare proxy to step into the patient’s shoes to make decisions in the patient’s best interests at a time when the patient lacks mental capacity.
Neither patients nor their relatives can demand specific treatment to be given. However, their views can be taken into account by treating healthcare professionals when they are making clinical judgments about potential and prospective treatment.
The purpose of an advance decision can be summarised briefly as a “right to choose”.
There are many advantages of making an advance decision which can be summarised as follows:-
- The right to choose is in theory, extended to the end of the patient’s life
- They can dismiss or endorse the presumption of consent
They reflect a patient’s wishes - They can safeguard the dignity and privacy of an incapacitated patient against unwanted or unwarranted treatment
- They provide communication between patients , their GP, family and friends, on treatment options at the end of life
- They enable an individual to plan for possible future incapacitation
- They relieve others (both the medical team and the patient’s family) of the responsibility of having to make a decision without any predetermined guidelines to go by, and thereby increase confidence in end of life decision making.
- They give a person a better sense of control
Healthcare professionals must follow an advance decision if it is valid and applies in the particular circumstances. If they do not, they could face criminal prosecution or civil liability.
It is possible to include directions about life-sustaining treatment and appropriate treatments for particular illnesses.
If you wish to consider generally treatment or your future care should you become mentally incapable, then the lasting power of attorney (health and welfare) would be more appropriate, although it is possible to have both provided they do not contradict each other.
If you would like further advice on any of these issues please do not hesitate to contact us
