Advance decision (‘Living Will’)
‘…there is an absolute right to refuse consent to medical treatment whether the reasons are rational, irrational, unknown or non-existent.’ Munby J
Provided you have mental capacity, you are entitled to refuse medical treatment. But what happens if you lose mental capacity?
In the absence of:
- an Advance decision or
- a Health and Welfare Power of Attorney
Your health care is in the hands of your doctor. They do not have to follow the wishes of your family or next of kin.,
You can make a written statement setting out the medical treatment you would want to receive should you lose mental capacity.
What is mental capacity?
It is the ability to understand the affect of your decisions. So, can you:
- understand and make sense of what has been said to you?
- make a rational decision based on what you have been told?
- communicate your decision?
A rational decision means you understand the consequences of your actions. If you refuse life sustaining treatment you must be able to appreciate you may die. Others may find your decision irrational, but it is your choice.
An Advance decision won’t apply where:
- at the relevant time you have the mental capacity to consent to or refuse treatment
- it conflicts with any Health and Welfare Lasting Power of Attorney you have subsequently made
- the treatment is not that specified in the Advance decision
- any circumstances specified in the Advance decision are absent
- there are reasonable grounds for believing that circumstances exist which you did not anticipate at the time of making the Advance decision and which would have affected your decision had you anticipated them eg medical advances
- life sustaining treatment is required and the Advance decision doesn’t:
a) contain a specific statement that such treatment must be withheld and
b) the Advance decision has been signed by you or at your direction and your signature witnessed
Life sustaining treatment
Life sustaining treatment is any form of treatment, the purpose of which is to keep you alive. This includes cardiopulmonary resuscitation, but can also include something as simple as a course of antibiotics.
Cancelling an Advance decision
You can do this at any time provided you still have mental capacity. This does not need to be in writing. It may be sensible, however, to give written notification to anyone holding a copy of your Advance decision. It will also be cancelled if you do anything which is clearly inconsistent with the Advance decision remaining a fixed decision.
What an Advance decision cannot do
There are limits on the treatment you can refuse or request:
you cannot refuse basic nursing care which is essential to keep you comfortable eg washing, bathing and mouth care.
you cannot refuse the offer of food or drink by mouth as these are not medical treatments
you cannot refuse the use of measures solely designed to maintain comfort for example, the use of painkillers
you cannot demand treatment that a health care team considers inappropriate
you cannot ask for anything that is against the law, such as euthanasia or assisting someone in taking their own life.
Making an Advance decision known
Do tell close family or a friend know that you have made one and let them know where it can be found. If you are admitted to hospital and your condition is life-threatening then it is important that the doctors and nurses who are treating you are made aware of its existence.
It is a good idea before finalising you Advance decision to discuss its contents and implications with your GP.
Review your advance decision regularly
We suggest keeping your Advance decision under regular review to make sure it applicable to your circumstances and does not become invalid on the basis of any of the grounds set out above.