Advance decisions

Adults with the capacity to do so can make decisions about how they want to be treated if they later lose their capacity.

An advance decision to refuse treatment (ADRT) is legally binding in England and Wales under the terms of the Mental Capacity Act. It must specify the treatments being refused, and in what circumstances, and may be made verbally or in writing. If, however, the refusal relates to life-sustaining treatment, the decision must be in writing, signed and witnessed. It must also clearly state that the refusal stands even if it will place the individual’s life at risk.

The situation regarding advance decisions (or directives) in Scotland and Northern Ireland is governed by common law rather than legislation. Provided that the decision was made by an adult with capacity and that it clearly sets out what treatment is being refused, and in what circumstances, it is highly likely that the courts would consider this a legally binding directive.

GMC guidance states: “If a patient lacks capacity and information about a written or verbal advance refusal of treatment is recorded in their notes or is otherwise brought to your attention, you must bear in mind that valid and applicable advance refusals must be respected. A valid advance refusal that is clearly applicable to the patient’s present circumstances will be legally binding in England and Wales (unless it relates to life-prolonging treatment, in which case further legal criteria must be met). Valid and applicable advance refusals are potentially binding in Scotland and Northern Ireland, although this has not yet been tested in the courts.”³

Emergencies

Legal action against doctors providing treatment without consent in an emergency is extremely rare. In genuine emergencies, do not hesitate to provide immediately necessary treatment unless there are clear indications that the patient would object to the treatment.