Advance Decision to Refuse Medical Treatment

This guide provides an introduction to advance decisions to refuse treatment, which are also known as a living will. The article will explain what an advance decision is, how they can be used to refuse medical treatment, how to ensure they are valid, and the circumstances when an advance decision can be legally overruled.

What is an Advance Decision?

An advance decision is often referred to as an advance decision to refuse treatment, a living will or an ADRT. This is a document that serves to outline a person's preferences and wishes for their future care, treatment and medical decisions, including the right to refuse medical treatment at some point in the future.

Through using an Advance Decision, a person is able to communicate their wishes in advance in case they lack the capacity to do so at a future stage. The Advance Decision must make specific reference to the treatments that are to be refused. What is more, the decision should also communicate the instances in which the treatment should be refused, as there may be some situations that a person would want to receive the treatment and others when they would want to decline. The decision should make clear the circumstances in which a specific treatment or process should be given or refused.

Individuals are within their rights to refuse treatment which could possibly keep them alive, which is referred to as a life-sustaining treatment. This means that a person can refuse various treatments including ventilation and cardiopulmonary resuscitation (CPR). Before making the advance decision, it is wise to discuss your choices with a doctor who will help assess your medical history and the ways in which you can refuse such treatment whilst maintaining maximum comfort.

No individual can make an advance decision to ask for their life to be ended – assisted suicide and voluntary euthanasia remain unlawful.

What does an Advance Decision include?

As long as the Advance Decision is valid and applicable to your situation, the content of the document communicates your wishes to any medical or care providers about your treatment choices for the future. The Advance Decision will only be used if you are unable to make your own decisions about your treatment at some stage in the future. An Advance Decision will be legally binding so long as it covers the specific content and consideration requirements. To be legally observant and binding, the Advance Decision needs to:

• Detail the treatment that you want to refuse
• Outline the situations in which you wish treatment to be refused
• Be unmodified since it was created - including verbal and written amendments
• Have been made without being influenced or harassed by another person
• For those who want to refuse life-sustaining medical treatment, the Advance Decision must be written and include a signature as well as be signed by witnesses. Advanced Decisions that document a person's refusal to receive life-sustaining treatment are further required to state that the decision remains 'even if life is at risk'.

You have the ultimate decision on who sees the Advance Decision, but it is wise to ensure that your family and any relevant health and social care professionals are aware of the document and where it is stored. Many people chose to hold a copy in their medical records to ensure that it is easily seen.

Can an Advanced Decision be legally overruled?

A valid and legally observant Advance Decision overrules a number of related documents and legislation, allowing it to be a cemented way for a person to communicate their wishes about their future care. The Advanced Decision overrules considerations such as:

• The ‘best interests provision', which otherwise would allow medical professionals to administer treatment when they believe that it is in the best interests of a patient. The caregiver is obliged to observe the contents of an Advance Decision, even if they believe that it is against the best interests of a patient.
• Prior to the Advance Decision being created, the decision of any personal welfare Lasting Power of Attorney (LPA) had been made.
• Decisions made by a court-appointed deputy.

The Court of Protection does not have the power to overrule a valid and applicable advance decision to refuse treatment.

Ensuring the Advance Decision is Valid and Applicable

To ensure that the Advance Decision can be complied with, it must be considered to be valid and applicable. In order to do this, the Advance Decision must:

• Not be withdrawn while the person had capacity
• The person who makes the Advance Decision is over the age of 18 and had the capacity to make, understand and communicate the content of the Decision when it was created
• The treatments to be refused are specifically outlined
• Not have appointed an LPA after the Advance Decision was made and given specific authority that allowed the LPA to make the decisions regarding treatment that were contained in the contents of the advance decision
• Be signed by the individual and by a witness if life-sustaining treatment is to be refused
• Not be in direct contradiction to subsequent actions of the individual which can be seen as a communication of the person's change of mind.

The Advance Decision can only be used in accordance with the situation in hand. The Advance Decision is therefore not valid if:

• The patient has the capacity to make decisions, even if they contradict the content of the Advance Decision
• The treatment has not been specifically outlined in the Advance Decision
• It is reasonable to believe that a change in circumstances would have influenced the content of the Advance Decision.

When might the Advance Decision not be used?

There are certain circumstances when an Advance Decision might not be followed by medical professionals. Such instances include:

• Where specific treatments have not been communicated by the Advance Decision
• When current circumstances would likely have impacted on the content of the Advance Decision, such as developments in treatment or research.
• Where the individual has received treatment under the Mental Health Act.
• Times when the individual has acted in a way which is not usual or is contradictory to the content of the Advance Decision and which in turn, can be seen as having an affect on the validity of the document. An example might be when a person has changed their religious beliefs after they created an Advance Decision.
• In instances when there is a doubt that the content of the Advanced Decision is valid, and the case has been subject to a court referral. In these instances, doctors are authorised to use their professional judgement with regards to the treatment given.