advance decision

England, Wales

A decision an individual makes, when he has capacity, to refuse the giving or continuing of specific medical treatment in specific, future circumstances, when he has lost capacity. Only individuals who have reached 18 can make advance decisions.

The term is defined in section 24 of the Mental Capacity Act 2005 (MCA 2005).

If an advance decision is valid and applicable (see section 25, MCA 2005), those giving the treatment must comply with it even if they do not consider it to be in the individual's best interests (section 26(1), MCA 2005). The incapacitated individual is therefore in the same position as an individual who has capacity, who is entitled to refuse medical treatment against the advice of healthcare professionals.

An advance decision concerns the refusal of treatment:

• It cannot require that a particular treatment be given in specific circumstances (just as an individual who has capacity is not entitled to insist on a particular treatment).

• An individual can make an advance decision to refuse artificial nutrition or hydration (feeding by tubes) but not attempted feeding by mouth, which is not "treatment".

While MCA 2005 does not prescribe any formalities for advance decisions to refuse treatment that is not life-sustaining, a decision to refuse life-sustaining treatment (where the individual's life will be at risk if the treatment is not given) is not valid unless:

• It is in writing.

• It is signed by the individual making the advance decision or by another person in his presence and at his direction.

• The signature is witnessed.

• The witness has signed the decision in the presence of the individual making it.

• It contains a specific statement by the individual making the decision that the refusal of the specified treatment is to apply even if his life is at risk.

(Section 25(5) and (6), MCA 2005.)

A valid and applicable advance decision takes precedence over:

• A decision by an attorney under a personal welfare lasting power of attorney, if the attorney was appointed before the advance decision was made (section 25(2)(b), MCA 2005).

• A decision of a deputy appointed by the Court of Protection, whenever the deputy was appointed.