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It is difficult to predict the future, what health concerns you may develop, and the medical treatments you may require. If you were no longer able to make your own decisions, are there any medical treatments you would want to refuse?

An Advance Decision to Refuse Medical Treatment (an Advance Decision) can set out in specific or general terms the treatments you would wish to refuse and the circumstances in which you would wish to refuse them. Similar documents have previously been known as Living Wills and Advance Directives.

The treatments you wish to refuse could include cardiopulmonary resuscitation (CPR), use of a mechanical or artificial ventilator to help you breathe, clinically assisted nutrition and hydration, or other treatments specified by you.

The circumstances in which you would wish to refuse the treatments could be if you had a form of dementia, a brain injury, a disease of the central nervous system or a terminal illness.

You may, of course, still be able to make your own decisions while having these conditions and, if so, then you would continue to be the decision maker. The Advance Decision only applies if you are unable to make or communicate a decision about your medical treatment and you are unlikely to regain the ability to make that decision.

So long as the Advance Decision is valid and applicable to you, it is legally binding on medical professionals and they must follow the details set out within it, even if your life is at risk as a result. This means that your wishes (rather than those of medical professionals or your family) would be acted on, even if you do not have mental capacity at that time. However, an Advance Decision cannot be used to request or insist on treatment. Nor can it be used as a request to end your life.

There are certain formalities which an Advance Decision must include in order to be valid. An Advance Decision can only be prepared while you have mental capacity and can only come into effect when you lose mental capacity. The Advance Decision must be in writing and it must be signed by you and witnessed. It must include a statement saying “I refuse this treatment even if my life is at risk as a result.”

Within the Advance Decision, you can list the people who should be consulted about your care. However, they cannot make decisions for you. If you want them to be able to make decisions for you regarding your health and welfare then you should also prepare a Lasting Power of Attorney for Health and Welfare.

You can prepare an Advance Decision yourself or you can use ones prepared by various organisations. A solicitor can also prepare an Advance Decision for you.

You should review the document regularly to demonstrate that it reflects your current wishes.

If you are considering preparing an Advance Decision then you should talk to a medical professional. They will be able to advise you as to the effects of refusing the medical treatment in certain circumstances.

Mental Capacity

To prepare an Advance Decision, you have to have mental capacity. But what exactly is mental capacity and who decides whether you have it or not?

The Mental Capacity Act 2005 (MCA) acknowledges that mental capacity can vary from day to day and from hour to hour. Also, you may have mental capacity to do some things like prepare an Advance Decision, but not other things like prepare a Will.

The MCA states that a person lacks mental capacity if they are unable to make a decision for themselves (in relation to a specific matter) because of an impairment of, or a disturbance in, the functioning of the mind or brain.

However, the MCA also makes it very clear that everyone is assumed to have mental capacity unless it is shown that they do not.

Other documents to consider

  • Advance Care Plan – You can talk about the options regarding an advance care plan with your GP or other medical professional. This can be a way for you to discuss many issues, for example, where you want to be looked after and where you would wish to be when you die and any religious or spiritual beliefs you would like to be taken into account.
  • Will – This legal document allows you to decide what happens to your assets after your death.
  • Lasting Power of Attorney for Health and Welfare – This is a legal document which allows your chosen attorneys to make decisions about your health and welfare if you lose mental capacity. They can also give your attorneys the ability to make decision about life sustaining treatment so you do need to be careful that this document does not contradict your Advance Decision.
  • Lasting Power of Attorney for Property and Financial Affairs – This is a legal document which allows your chosen attorneys to make decisions about your property and financial affairs both when you have mental capacity and if you lose mental capacity.
Read more on making a Will after a brain injury

Making a will after suffering a brain injury

This article has been produced by Ashtons Legal

Brain Injury Group member firm Ashtons Legal represent Clients nationwide following brain injuries.

Ashton Legal’s Medical Negligence team are nationally recognised and have been ranked as top tier consistently for over 20 years by independent sources such as The Legal 500 and Chambers UK.

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