You are here:

Managing someone's legal affairs

Advance decisions to refuse treatment

The Mental Capacity Act 2005 came into force on October 1 2007 and affects the way people make decisions about their future care if they lose mental capacity. This includes decisions on whether they want life-saving treatment or to participate in research.

Advance decisions to refuse treatment

If the person you care for is aged 18 or older and has mental capacity, they can appoint a personal welfare lasting power of attorney (LPA). The person who is given power of attorney (the "attorney") will be able to make decisions about future medical treatment on their behalf if the person doesn't have the mental capacity to make the decision.

This means the attorney can consent or refuse treatment for the patient. It also means they should be involved in discussions about treatment options, but it does not mean they can demand treatment that is not clinically appropriate.

If the person you care for wishes to refuse specific medical treatment in specific situations that could arise in the future, they should make their wishes known by making an "advance decision to refuse treatment" (previously known as an "advance directive"). This is made when the person still has capacity and is used if they are unable to make the decision themselves at the time of the proposed medical treatment.

If the person you're looking after makes an advance decision that is valid and acceptable, you can't override it unless the LPA was made later and specifies that you have the power to do so.

An advance decision must be "valid and applicable". Health and social care professionals have to make a judgement about whether an advance decision is valid. They must be satisfied that:

  • the person had capacity when they made it
  • there was no coercion
  • they fully understood the implications of their decision

Health and social care professionals also have to be satisfied the advance decision is applicable to the particular situation in which a decision needs to be made.

How to make an advance decision to refuse treatment

Advance decisions to refuse treatment can be made verbally, but it is preferable to make them in writing. The code of practice in the Mental Capacity Act provides a checklist of information to be included in any written statement. The statement should include:

  • full details of the person you act for and who is making the statement, including their date of birth, home address and any distinguishing features (so that an unconscious person, for example, could be identified)
  • the name and address of their general practitioner (GP)
  • whether the GP has a copy of the statement
  • something to say the decision is intended to have an effect if the person you're looking after lacks the capacity to make treatment decisions
  • a clear statement of the decision, specifying the treatment to be refused and the circumstances in which the decision should be used or that will trigger a particular course of action
  • the date the document was written and, if appropriate, the date it was reviewed
  • the person's signature – if the person can't write, they must give authority to someone else to sign on their behalf in their presence
  • a signature from a witness to the above 

Life-saving treatment

If the person you're looking after has made an advance decision to refuse life-sustaining (or life-saving) treatment in the future, the document must be written and signed by:

  • the person you're looking after (or someone they have authorised to sign on their behalf and in their presence), and
  • a witness to the signature of the above

The advance decision must also include a specific statement by the person you're looking after, which:

  • clearly states that it relates to the treatment they have specified, "even if life is at risk", and
  • is signed in the same way in the presence of a witness, who must also sign the statement

Whether treatment is life sustaining or not depends not only on the type of treatment, but also on the individual circumstances in which it is prescribed.

For example, in some cases, giving antibiotics to the person you're looking after may help keep them alive, whereas in other situations the same medication might be prescribed to treat conditions that aren't life threatening.

The person you're looking after cannot make an advance decision refusing measures necessary to keep them comfortable, such as warmth, shelter and hygiene.

Research

The Mental Capacity Act contains safeguards for many types of research involving people who lack capacity to agree to it. It tries to balance the wishes of people who lack capacity to benefit from properly conducted research with the need for the strict safeguards set out in European law.

The act talks about ways of consulting people, approval of the safety of the research, and levels of risk and intrusion.

The act says the interests of the incapacitated person are more important than the interests of science and society.

Ratings

How helpful is this page?

Average rating

Based on 34 ratings

All ratings

Add your rating

Comments

The 2 comments posted are personal views. Any information they give has not been checked and may not be accurate.

gina at choices said on 01 May 2014

I just asked about that too. how do we make an
advance statement ? I mean its done anyway
we did anything at the nhs clinic. but how do we stipulate what we choose in that sense ?
can we have or get a form or leave it on our records ?
I had prolems before of people not respecting my will.
it wasn't the nhs in that sense but it can be a problem with family members and religions , where I consented and their religion didn't perhaps. as I said im ok its all quite happy and normal to me but the options weren't always to others.
and it can be a problem in life threatening situations.
so how do we do it and where ?

Report this content as offensive or unsuitable

roger downing said on 30 September 2011

It would be helpful if the NHS provided a proforma statement for making an advance decision on this website. It would be even more helpful if advice was given on how to file this statement with the NHS such that it will be acted upon when required.

Report this content as offensive or unsuitable

Page last reviewed: 16/06/2014

Next review due: 16/06/2016

Call Carers Direct on 0300 123 1053

Confidential information and advice for carers.

Lines are open 9am to 8pm Monday to Friday (except bank holidays), 11am to 4pm at weekends. Request a free call back or an interpreted call back in one of more than 170 languages including ربي, বাংলা, 中文, Français, ગુજરાતી, Polski, Português, ਪੰਜਾਬੀ, Soomaali, Español, Türkçe and .اردو.

You can talk to an adviser live online or send a query by email.

Find out more about the Carers Direct helpline.

Services near you

Your rights as a carer

Find out what the law says about your rights if you're looking after an ill or disabled relative, friend or neighbour

Looking after someone with dementia

Practical information and advice for anyone who is looking after someone with dementia

Looking for local carers' services?

Find carers' help on your doorstep using our directory of local carers' services

Caring for a parent at home

In this video, Claire and her family talk about the decision to care for her mother at home.

Media last reviewed: 05/08/2013

Next review due: 05/08/2015