Anyone over eighteen-years-old is free to draw up an ‘advance decision to refuse treatment’. This is a document that records the person’s wishes as to the medical treatments they would refuse in the event that these treatments were offered and the person had full capacity. If the situation arises where treatment is recommended but the person now lacks capacity, the ‘advance decision’ will dictate the approach.
It’s important to note here that once such a decision has been made it cannot be overruled by you as the Deputy, or the Courts, even if the consequence of such a refusal is fatal. It may be difficult to accept this kind of decision, especially if it relates to a loved one, however it is important that you do not let your own beliefs or opinions take precedence over those of the person lacking capacity.
Advanced decisions and the laws that govern them can be confusing. If you need more information on how they work you can refer to the Mental Capacity Act 2005 - Code of Practice, or seek advice from an expert in such matters. However in short, an advance decision must fulfil the following two criteria:
- It must be valid. For a decision to be valid, the person in question must have been fully capable at the time they made it and must not have withdrawn it. Consideration is also given to the subsequent actions of the person who made the advance decision and whether or not their later actions clearly contradicted their initial request.
- It must be applicable. The decision must be clear as to which treatment in particular the person is refusing. Although there is no need to use medical terminology, the treatment must be clearly outlined as well as the circumstances in which this refusal applies.
You can find out more about how advanced decisions work by referring to the Mental Capacity Act 2005 - Code of Practice, or by contacting the team here at Gillhams Solicitors – specialists in Court of Protection matters – for a free and confidential chat.