Advance Decisions (Living Wills)

An advance decision (often referred to as a ‘living will’) allows you to make a decision now about what medical treatment you do not wish to receive in the future. Its purpose is to ensure that if you lack capacity to make a treatment decision at a time in the future, you will not be forced to receive treatment that you do not want – including life-sustaining treatment. An advance decision has the same effect as a refusal of treatment by a patient with capacity – it takes precedence over any best interests decision taken on your behalf.

Some people decide to make an advance decision to refuse a particular treatment, such as blood transfusion, based on their religious, cultural or spiritual beliefs or preferences. You are entitled to make an advance decision to refuse life sustaining treatment even if the likely outcome will be the hastening of your death. An advance decision cannot be used as a means of demanding specific medical treatment or in order to request that your life be ended.

Advance decisions are legally binding providing the criteria set out in the Mental Capacity Act 2005 are adhered to. It is important that the advance decision clearly specifies what treatments you want to refuse and explains the circumstances in which you want to refuse them. Where a medical professional has been alerted to the existence of a valid and applicable advance decision but fails to follow it, this can give rise to civil liability or criminal prosecution as well as disciplinary proceedings.

In order for an advance decision to be ‘valid’ the person making it:-

  • must be 18 or over
  • must have mental capacity to make the decision at the time it is made
  • must not have subsequently withdrawn the decision at a time when they had capacity to do so
  • must not subsequently have made a Lasting Power of Attorney which overrides your advance decision (i.e. one which authorises an Attorney to make the same treatment decisions as those covered by the advance decision).
  • must not subsequently have done something that clearly goes against the advance decision i.e. which suggests that they may have changed their mind

 In order for an advance decision to be ‘applicable’:-

  • it must apply to treatment that is being proposed and to the current circumstances
  • the person who made it must lack capacity at the time when the decision to consent or refuse the specified treatment needs to be taken
  • there must be no reasonable grounds for believing that there have been changes in circumstance which would have affected the decision if the person had known about them at the time they made the advance decision

An advance decision does not need to be in writing unless you want to refuse life sustaining treatment. But it is always advisable to put an advance decision in writing and ensure that it is documented in your medical records – this will avoid any future uncertainty over its validity and will increase the likelihood of treating medical professionals being alerted to it.  If you want to make an advance decision refusing life-sustaining treatment then additional rules apply including a requirement that it is in writing, dated, and signed by you in the presence of a witness.

An advance decision will give you greater control over the treatment you receive in the future at a time when you are incapacitated. It can reduce the stress and anxiety associated with vulnerability at the end of life and provide you with peace of mind that your wishes will be respected. An advance decision ensures that medical professionals caring for you are aware of your wishes and it relieves both them and your family of the burden of having to make treatment decisions on your behalf without knowing your wishes.

If you are thinking about making an advance decision we recommend that you also speak to your GP or treating hospital consultant about the types of treatment that you might be offered in the future and what the consequences might be for you if you were to refuse them.

For anything further, one of our specialists would be delighted to meet you either in our office or in your own home to talk through your requirements and answer any questions. Please contact us at any time.

How can we help?

  • We can assist you in preparing an advance decision that is expressed clearly and accurately and is compliant with the requirements of the Mental Capacity Act 2005
  • We will ensure that there is no conflict between your advance decision and any Lasting Power of Attorney for Health & Welfare
  • We will advise you on the steps to take in order to alert medical professionals to the existence of your advance decision
  • We will advise on the steps you should take going forwards to ensure that your advance decision remains valid and applicable