CollinsBensonGoldhill Legal Briefing

ADVANCED DECISIONS

What is an Advance Decision ("AD")?

An AD gives an individual the opportunity to refuse specified treatment in the future (e.g. a blood transfusion), if particular circumstances arise.

An individual can provide the details of the treatments he wants to refuse either orally or in writing

However where an individual wants to refuse life saving treatment then this must comply with the following:

1. The decision must be in writing;
2. It must be signed by the individual or if they cannot sign then by another at the individual’s direction in the individual’s presence;
3. The Individual must sign the AD in the presence of a witness;
4. The witness must sign in the presence of the individual.

Who can make AD?

They can only be made by people who have reached age 18 and who have the capacity at the time of making them

When is an AD invalid?

As stated above it will not be valid where the individual has withdrawn the AD at a time when they had the capacity to do so; where the power to refuse consent has been passed to a LPA which was created after the AD was made (the AD must state that power has been given to the donee).  Furthermore, where an individual does something which is inconsistent with the AD being their fixed decision then the AD will be invalid.

When is an AD applicable?

The AD will not be applicable if one or more of the following arise:

1. The treatment proposed is not specified in the AD
2. The circumstances are not those that match the circumstances in the AD
3. There are reasonable grounds to believe that circumstances have arisen which were not foreseen by the individual and if he were to know it would have had an effect on his decision

Can an AD be withdrawn from?

It is possible to revoke an AD – this need not be made in writing and can be done at any time as long as the individual has the capacity to do so

If an LPA is made after the AD then this will take prevail over the AD as long as the LPA states that it has the power to do so.

So long as an AD is valid and applicable then it must be followed regardless of whether it is in the individual’s best interests or not

How is it regulated?

Governed by the Mental Capacity Act 2005 and the Code of Practice released in line with this Act

Summary of sections of MCA 2005:

Section 24:

Defining AD

• have to be aged 18 or over and have the capacity to do so
• Can make, if a treatment is proposed for him at a later stage and at that time he lacks the capacity to the consent or carrying out of the treatment, to prevent the treatment from being carried out/continuing
• P can withdraw from an AD at any time when he has the capacity to do so and this withdrawal need not be in writing
• If an alteration needs to be made this need not be in writing either unless section 25(5) applies (that is it relates to life saving treatment)

Section 25: 

An AD is not valid if P:

• Has withdrawn the decision at the time had capacity to do so

• Has conferred authority on donee to give or refuse consent under a LPA created AFTER the AD was made

• Has done anything which is inconsistent with the AD being his fixed decision

• It is not applicable if at the time the P has the capacity to give or refuse consent to treatment

An AD is not applicable if:

1. The treatment received is different to that specified in AD
2. Any circumstances specified in AD are absent
3. Reasonable grounds to believe that  there are circumstances which exist which P did not take into consideration and would effect his decision had he knew about them

An AD is not applicable to life sustaining treatment unless:

The decision is verified by a statement by  P to the effect that it is to apply to that treatment even if life is not at risk and the decision and statement comply with the following:

• It is in writing; 

• It is signed by P or by another in P’s presence and P’s direction;

• Signature made or acknowledged by P in presence of  witness;

• Witness signs or acknowledges signature in presence of P

The existence of an LPA does not effect AD unless it is one as specified above (that is it was created after the AD)

Section 26:  -A person is not liable for continuing treatment unless at the time he is satisfied that a valid and applicable AD exists

Relevant Case Law

HE v A Hospital NHS Trust [2003] EWCH

Facts: 

• D was a Muslim until mother separated from father

• Brought up as a Jehovah’s Witness

• In early 20s D signed an advance medical directive stating that she did not want any blood transfusions in the future and that the AD could only be revoked in writing

• At age of002024 diagnosed with congenital heart problem and doctors said she would die unless she had a blood transfusion but D was unconscious following sedation

• D’s mother tried to refuse the blood transfusion for her daughter saying that AD in force so D did not consent

• HE (D’s father) brought application saying that now she is engaged to a Muslim man and had expressed a commitment to the Muslim faith then she had stopped worshiping as a JW before her illness.

HELD: Treatment could be lawfully administered as since it is not necessary for an AD to be in writing in order to be valid so no requirement for the revocation to be as such.  Burden of proof was on the mother to prove that the directive was still in force but  - in this case the evidence was such that the case had to be resolved in favour of the preservation of life

Re C (Adult: Refusal of Medical Treatment)[1994] 1 WLR 290

Facts:                                                   

• Patient diagnosed as chronic paranoid schizophrenic serving sentence in prison

• Whilst in prison his foot became gangrenous and the doctors said amputation would be the best way forward

• The patient refused this and asked for conservative treatment but the hospital refused to give an undertaking that they would not amputate

• He was granted an injunction to prevent them from amputating.

HELD: The individual’s general capacity was not so impaired by his illness so as to render him incapable of understanding the nature, purpose and effects of the proposed treatment

Re T (Adult: Refusal of Treatment)[1993] Fam 95

Facts:                                                   

• T in car accident when 34 weeks pregnant – she refused a blood transfusion after talking to her mother but was informed that there was alternative treatment available

• She signed a form refusing consent but the form and its contents were not explained to her

• She went into labour - caesarean performed but the baby was a stillborn

• The hospital gave her a blood transfusion an obtained declaration from the court that under the circumstances it was not unlawful.

HELD: A signature from a patient will not protect the hospital from proceedings unless the patient fully understands the significance of signing the document.  The consent or refusal would be vitiated by lack of information or misinformation