Advance Directives

You can use an advance directive (also called an advance decision) to indicate your wish to refuse all or some forms of medical treatment if you lose mental capacity in the future. You cannot use it to request treatment.

A valid advance directive has the same effect as a refusal of treatment by a person with capacity, the treatment cannot lawfully be given - if it were, the doctor might face civil liability or criminal prosecution.

You can't use an advance decision to:

• ask for your life to be ended
• force doctors to act against their professional judgement
• nominate someone else to decide about treatment on your behalf

You should bear in mind that new drugs or treatments may be introduced in the future so you may wish to allow for new treatments even if refusing a current one.

Does an advance directive have to be in writing?

An advance directive should be in writing to avoid any doubt. If someone did not have such a document in place but they were to state their wishes to the senior medical consultant at the time of their treatment, then their wishes might be taken into consideration, this however, would not be guaranteed.

To be valid an advance directive needs to:

• be made by a person who is 18 or over and has the capacity to make it
• specify the treatment to be refused (it can do this in lay terms)
• specify the circumstances in which this refusal would apply
• not have been made under the influence or harassment of anyone else
• not have been modified verbally or in writing since it was made

Refusal of life-sustaining treatment

Advance directives refusing life-sustaining treatment must:

• be in writing (it can be written by a family member, recorded in medical notes by a doctor or on an electronic record)
• be signed and witnessed (it can be signed by someone else at the persons direction - the witness is to confirm the signature not the content of the advance directive)
• include an express statement that the decision stands 'even if life is at risk'

When might an advance directive not be allowed?

A doctor might not act on an advance directive if:

• the person has done anything clearly inconsistent with the advance decision which affects its validity (for example, a change in religious faith)
• the current circumstances would not have been anticipated by the person and would have affected their decision (for example, a recent development in treatment that radically changes the outlook for their particular condition)
• it is notclear about what should happen
• the person has been treated under the Mental Health Act

A doctor can also treat if there is doubt or a dispute about the validity of an advance decision and the case has been referred to the court.

At LCS we are fully qualified and experienced in the drafting of Advance Directives and can offer appropriate advice to anyone contemplating making such a directive.