More about advance decisions(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:refusal of treatmentAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:refusal of treatmentAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:effectAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:formalitiesAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:formalitiesAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:formalitiesAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:validityAdvance decisions:applicabilityAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:validityAdvance decisions:applicabilityAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:validityAdvance decisions:applicabilityAdvance decisions(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:validityAdvance decisions:applicabilityAdvance decisionsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beAdvance decisions:validityAdvance decisions:applicabilityAdvance decisions
3.102The purpose of this chapter is not to provide an exhaustive statement of the law but to introduce the reader to the basic MCA 2005 principles and structures applicable to Court of Protection work. There are a few points concerning advance decisions which it is useful to know at the outset.
An advance decision ‘to refuse treatment’
3.103MCA 2005 s24(1) provides that an ‘advance decision’ means a decision made by an adult ‘when he has capacity to do so’ that if:
(a)at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and
(b)at that time he lacks capacity to consent to the carrying out or continuation of the treatment,
the specified treatment is not to be carried out or continued.
3.104From this, it can be seen that:
•An advance decision can only relate to ‘treatment’ proposed by someone providing health care, not personal care. The term ‘treatment’ includes ‘a diagnostic or other procedure’.
1See MCA 2005 s64(1). The intention presumably is that a person cannot refuse basic personal care which they may require upon becoming incapacitated such as shelter, feeding, drinking, clothing and washing. There is no right to die in squalor.
•Second, a person with capacity may decide in advance what treatment to refuse but not what treatment to receive. A clinician cannot be required to give treatment which they consider is clinically inappropriate.
2A person can of course set out in writing in advance what treatment they wish to receive if and when they lack capacity and this must be taken into account when deciding what treatment (if any) is in their best interests: see MCA 2005 s4(6)(a). However, such a statement is not binding in the way that an advance decision made under section 24 is. Since it is not binding, nothing has been decided in advance. •Third, on a literal reading, the right is to refuse a particular specified treatment, not to refuse treatment by a specified health care provider or treatment at a specified hospital or place.
Effect of advance decisions
3.105The effect of a valid advance decision which it is accepted is applicable to the particular treatment is that the incapacitated person is treated as having made the decision with capacity on the future date when they would otherwise be given the treatment.
3MCA 2005 s26(1). In other words, notwithstanding that the person now lacks capacity to consent or to refuse consent to the treatment, it operates as a valid and binding refusal of that treatment.
Formalities
3.106In terms of the formalities, an advance decision can be expressed ‘in layman’s terms’,
4MCA 2005 s24(2). provided of course it is sufficiently clear what treatment is being ruled out and the circumstances in which it is not to be given.
3.107An advance decision to refuse treatment need not be in writing unless it relates to life-sustaining treatment. In this instance, to be applicable it must be in writing and include a statement ‘to the effect that it is to apply to that treatment even if life is at risk’. It must then be signed by the relevant person (or by someone in their presence and at their direction) in the presence of a witness who then signs as a witness.
5MCA 2005 s25(5). These formalities exist because the individual may literally be signing their life away.
3.108The person concerned may withdraw or alter their advance decision at any time they have capacity to do so,
6MCA 2005 s24(3). and a withdrawal (including a partial withdrawal) of an advance decision which relates to life-sustaining treatment need not be in writing.
7MCA 2005 s24(4).Validity and applicability of advance decisions
3.109A person does not incur liability for the consequences of withholding or withdrawing a treatment if at the time the person reasonably believes that an advance decision refusing the treatment exists which is ‘valid and applicable’ to the treatment.
8MCA 2005 s26(3).3.110Conversely, a person is liable in law to the incapacitated person if the person carries out or continues a particular treatment when at the time he or she is satisfied that an advance decision refusing the treatment exists which is ‘valid and applicable’ to it.
9MCA 2005 s26(2).3.111The Court of Protection may make a declaration as to whether an advance decision exists, is valid or is applicable to a particular treatment.
10MCA 2005 s26(4).3.112Nothing in an apparent advance decision stops a person providing life-sustaining treatment, or doing any act that the person reasonably believes to be necessary to prevent a serious deterioration in the person’s condition, while a decision as respects any relevant issue is sought from the court.
11MCA 2005 s26(5).3.113In any disputed case, it can be seen that the two key issues are validity and applicability.
Validity | •An advance decision is not binding if it is not valid. •An advance decision is not valid if the person lacked capacity to make it at the time. •An advance decision is not valid if the person withdrew it at any time when s/he had capacity to do so. •An advance decision is not valid if the person has done anything else clearly inconsistent with it remaining their fixed decision. |
Applicability | •An advance decision is not binding if it is not applicable to the particular treatment. •An advance decision is not applicable if the person still has capacity to make this particular treatment decision (simply ask them for their decision). •An advance decision is not applicable if the treatment is not the treatment specified in the advance decision. •An advance decision is not applicable if any circumstances specified in the advance decision are absent. •An advance decision is not applicable if there are reasonable grounds for believing that circumstances exist which the person did not anticipate at the time of the advance decision which would have affected their decision. •An advance decision is not applicable to life-sustaining treatment unless it is verified by a statement to the effect that it is to apply to that treatment even if life is at risk, and the decision is in writing, signed and witnessed. |