Other aspects of consent

Advance decisions and advance statements

An advance statement is a more general document setting out the individual’s wishes regarding decisions about their care and treatment

Adults with capacity can make known what their preferences would be regarding medical treatment if they later lose their capacity.

An advance decision to refuse treatment made by an adult (ie, 18 or over) is legally binding in England and Wales under the terms of the Mental Capacity Act. It must specify the treatments being refused, may set out in what circumstances the refusal should apply, 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.

Before acting on an advance decision to refuse treatment, doctors must be satisfied that it is still valid and applies to the current circumstances. If there is any doubt about this, the patient should be provided with care to secure his/her best interests while the issue is resolved, if necessary by reference to the courts.

An advance statement is a more general document setting out the individual’s wishes regarding decisions about their care and treatment. It may also include information about their beliefs and preferences as an aid to those who will have to decide what is in their best interests. This is not a legally binding document, but doctors have a duty to take the wishes of patients who lack capacity into account (if they are known) when making treatment decisions. 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: “Any valid advance refusal of treatment – one made when the patient was competent and on the basis of adequate information about the implications of his/her choice – is legally binding and must be respected where it is clearly applicable to the patient’s present circumstances and where there is no reason to believe that the patient had changed his/her mind.”⁹

In England and Wales, under the Mental Capacity Act, health professionals are protected from liability for providing treatment if there is doubt about the validity or applicability of an advance decision, and no liability is incurred for withholding or withdrawing treatment if those responsible for care reasonably believe that a valid and applicable advance decision exists.

Consent by proxy

Legislation has been introduced that allows capable adults to appoint someone to make healthcare decisions on their behalf if they become incapacitated

It used to be the case that no-one had the right to consent to treatment on behalf of an adult, regardless of that adult’s level of capacity. This is no longer the case in Scotland, England and Wales, where legislation has been introduced that allows capable adults to appoint someone to make healthcare decisions on their behalf if they become incapacitated.

In Scotland, an adult can appoint a welfare attorney to make decisions about his/her personal welfare. This power only takes effect, however, if the individual concerned no longer has the capacity to make a decision for him/herself. In England and Wales, someone with a personal welfare Lasting Power of Attorney (LPA) can make decisions on behalf of an incapacitated adult about most aspects of that person’s social and physical care, depending on what was stipulated by the donor in drawing up the LPA. They are not empowered to make decisions about life-sustaining treatment unless this was expressly authorised by the patient (see Box 6).

If a patient who lacks capacity has appointed a welfare attorney, then this person should be consulted when making decisions about the patient’s care and treatment (see Box 7). If there is no LPA, and there is a need for someone to make ongoing decisions about a patient’s care, the Court of Protection may appoint a deputy to fulfil this role.