Advance directives, decisions and statements

As a competent adult, you have a legal right to give or withhold consent to medical treatment. However, if you become mentally incapacitated or unconscious, treatment may be given or withheld without your consent provided medical staff are convinced it would be in your best interests.

Through what used to be called an 'advance directive' (also known as a 'living will'), you retain your legal right to decline specific treatment, including life-prolonging treatment.

The Mental Capacity Act defines an advance directive as 'advance decisions to refuse treatment'. Provided the document is written and signed by someone who fulfils the criteria listed below, it has legal force. However, in some emergency situations people treating you may not be aware of your instructions.

An advance statement is when you specify what treatment or care you would like to be given if you no longer have the capacity to make your own decisions. This is not legally binding for health professionals but will help them to understand your preferences.

For your advance decision/statement to be valid, you must:

  • be 18 or over and have the capacity to make it
  • specify the treatment to be refused
  • specify the circumstances in which this refusal would apply
  • not have been harassed or influenced by anyone else when drafting it
  • be aware of the treatment options and their implications
  • not have modified it verbally or in writing since it was signed and dated
  • include a statement specifically stating that your instructions regarding refusal of treatment stand 'even if life is at risk'

We strongly advise you to talk to your GP (and hospital doctors if you are also under their care) before drafting a directive. They will be able to explain the consequences of refusing certain medical treatment. For example, if you refuse permission for an intravenous infusion (a 'drip'), this might prevent doctors or nurses being able to give you the most effective form of pain relief in certain situations.

Some people do not wish to be placed on a ventilator if they were to become gravely ill, but this would also rule out the possibility of becoming an organ donor. Therefore it is better to keep an advance directive simple, addressing the principles of how you feel rather than the specific details about particular procedures or treatments. A doctor will also confirm whether you are mentally competent at the time of drafting.

Once you have drafted your directive, you should ensure that it is signed and witnessed. You should give copies of your decision to your GP, hospital case notes if appropriate and a relative or friend, so they are aware of your decision. The British Medical Association suggests that you should also carry a card indicating that fact as well as giving a copy to your doctor. It is also important to regularly review your directive.

There are commercial companies who offer to assist with drafting advance decisions. Please ensure that you ask about their fees and are able to check any draft with your doctor to ensure you are aware of the consequences of refusing certain treatments.

You might also wish to consider appointing a Lasting Power of Attorney - Personal Welfare. This is a more formal process which allows you to appoint someone to make decisions about your healthcare on your behalf if you are no longer able to do so.

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