Woman looking at the horizon through a spyglass

Advance decisions: what are they and are they still worth doing?

For some years now it has been possible for individuals to set out the circumstances in which they would refuse life sustaining medical treatment, so that their wishes can be followed if they lose capacity and cannot then make or communicate a decision. Initially this was possible through entering into a “living Will” and, since the advent of the Mental Capacity Act 2005 (MCA), advance decisions enable individuals to set out their wishes on this subject in a manner laid down by statute.

In October, Mr Justice Baker delivered a speech on the topic of advance decisions. Some of his remarks were interpreted by the media as meaning that people who have made advance decisions “can no longer be assured that they will be allowed to die in line with their instructions.”

What are Advance Decisions?

Advance Decisions are governed by the MCA. The person making it must be over 18 and mentally competent. The Advance Decision should specify precisely what treatment is refused and, if this is life sustaining treatment, it must be written, signed by the person making it, witnessed and include a statement that it is to apply even if life is at risk. A record made electronically or in medical notes will be regarded as being written.

Are the media reports correct?

Mr Justice Baker’s speech was wide-ranging and largely concerned with ethics, and the law governing decision making by the courts when  deciding whether artificial nutrition and hydration should be withdrawn when an individual is in a minimally conscious or vegetative state. In the course of his speech he identified Advance Decisions as one way in which a person can express their wishes in a legally recognised way with the other being the completion of a Health and Welfare Lasting Power of Attorney (LPA).

Mr Justice Baker stated, however, that there is currently some doubt as to whether an Advance Decision or Health and Welfare LPA can of itself authorise the withdrawal or withholding of artificial nutrition and hydration in a case of someone in a state of vegetative or minimal consciousness. This doubt, he believes, was raised by a Court of Protection practice direction (Practice Direction 9E) which states that cases that fall within these circumstances should be brought to the court. He concluded by hoping that “an opportunity will arise soon for the courts to resolve [this] question”

What does this mean in practice?

Some commentators disagree with Mr Justice Baker about the effect of the practice direction but, on the assumption that he is correct, the first thing to say is that it was misleading for the media to state  that individuals who have entered into Advance Decisions or Health and Welfare LPAs will not be “allowed to die in line with their instructions”.

Mr Justice Baker was considering the necessity to apply for a court order in a particular situation: when a patient is in a minimally conscious or vegetative state and it is wished to withdraw artificial nutrition and hydration. In other situations, such as, for example, when a person suffering from a terminal illness loses capacity and has previously stated that he does not wish to be resuscitated, a court application should be unnecessary for those wishes to be carried out.

The practice direction is therefore likely to make a court application only necessary in narrowly defined circumstances. If those circumstances arise, and a court application is necessary, then it should be remembered that the Mental Capacity Act directs that in making that decision on behalf of an incapacitated person the court “must consider, so far as is reasonably ascertainable, (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity).”

In his speech Mr Justice Baker also said that, “It seems likely that the courts will now focus much more intensely on identifying the patient’s “wishes, feelings, values and beliefs looking carefully at all statements ….made by the patient at an earlier time”. An advance decision drawn up in accordance with the MCA would be a very clear and legally sanctioned way of making those wishes known to the court.

Do Advance Decisions still have a place?

Undoubtedly. They enable a person to express their wishes about their end-of-life care, and to have those wishes followed without the need for further legal intervention, except (at present) in certain narrow circumstances. Even if a court order is required, a clear Advance Decision is likely to be highly persuasive in enabling the court to make a decision.

If you have any queries relating to Advance Decisions, Lasting Powers of Attorney or any other private client matter please contact a member of the Private Capital team.