Alzheimer’s Research UK has released some important statistics on their website in respect of the rising rates of dementia in the United Kingdom (“UK”). According to their published data, more than half of UK adults know someone who has been diagnosed with dementia and it is estimated that one in three people born in the UK in 2022 will develop dementia in their lifetime.
This article will explore why making an “advanced decision” could be key to retaining control over decisions involving important medical and healthcare treatment in the event that a person loses capacity in the future to make such decisions.
What is an advanced decision?
An advanced decision is a document made by a person over the age of 18 who has been deemed to have capacity. The decision will usually include a person’s wishes and feelings as to how they want to be treated in respect of health care decisions in the future. If a person wishes to refuse life-sustaining treatment, the decision will need to be written down, signed by the person creating the advanced decision and witnessed by an independent third party.
The decision should acknowledge that it covers situations whereby a person may potentially die if medical treatment is refused. This important point should be acknowledged and addressed within the document. The advanced decision will be legally binding and will be considered by health practitioners when a person has been deemed to lack capacity under Section 2(1) of the Mental Capacity Act 2005 (“MCA 2005”).
One of the reasons a person may decide they wish to make an advanced decision is because they feel strongly about certain things. For example, they may want a written record which categorically states that they wish to refuse CPR in the event that they develop a certain incurable illness, or alternatively, they are involved in a serious accident which results in life changing injuries.
Is an advanced decision binding on health practitioners?
In the majority of cases, an advanced decision will be binding and the wishes expressed within the document will be followed by health practitioners. However, it is possible that an advanced decision may not cover all medical scenarios. In the event that an advanced decision does not cover a certain event or situation, emergency treatment may be administered on an individual if it is deemed to be within their best interests.
The performance of emergency medical treatment is unlikely be deemed unlawful even in the event that an advanced decision is in place. This is particularly relevant when a healthcare trust can show that the advanced decision did not apply to the particular circumstances they were dealing with. As such, it is imperative that when drafting an advanced decision that the document is wide enough to include all potential situations and scenarios. The benefit of ensuring all important events are covered is that it will aid healthcare practitioners in being confident that they are complying with a person’s advanced wishes.
Scenarios where the advanced decision may not be upheld
As mentioned above, if an advanced decision is not wide enough to cover certain scenarios or does not include what medical treatment you wish to refuse, the decision may not be considered. Furthermore, an advanced decision will not usually be considered by medical practitioners when they are treating a person who they have deemed to have capacity under the MCA 2005. As such, the healthcare practitioner will usually consult with the patient, where possible, before deciding what treatment to administer.
It is important to stress that the preparation of a Lasting Power of Attorney (“LPA”) may also have an impact on an existing advanced decision. For example, under Section 5 of a Health and Welfare LPA the donor can provide powers to their attorney to make decisions about life-sustaining treatment on their behalf. In the event that such power is given to an attorney, the attorney will have authority to consent or refuse life-sustaining treatment on the donor’s behalf. The decision made by the attorney could potentially conflict with the existing advanced decision.
Lastly, there is also the possibility that an advanced decision may not be upheld if there has been a change of circumstances since it was made. For example, the document may have been executed several years ago and may no longer reflect a person’s wishes and feelings in respect of medical treatments. As such, healthcare practitioners may decide to disregard the document if they feel strongly on this point and have evidence to support their decision.
The importance of keeping an advanced decision up to date
It is possible to update or make changes to an advanced decision at any time. A person may decide to make changes to the document following a change in circumstances. For example, following the birth of a child, they may feel differently about accepting life-sustaining treatment.
If a person wishes to enact changes to their advanced decision, they should ensure that they cancel and destroy their previous advanced decision and make a new one to reflect their current wishes. They should also inform others of their changes such as their family, friends and relevant healthcare practitioners. This is vital to ensure that the new document is considered in the event that it is required.
Again, if the new advanced decision includes a wish to refuse life-sustaining treatment, this should ideally be documented in writing, signed, and witnessed by an independent third party.
The difference between “advanced decisions” and “advanced statements”
The key difference between these two documents is that unlike an advanced decision, an advanced statement is not legally binding. Although an advanced statement should still be considered and referred to when decisions are being made in respect of healthcare, it does not hold the same power as an advanced decision.
A person may choose to have an advanced statement in place rather than an advanced decision so that they can be confident that their wishes and feelings will be considered. However, they may prefer and feel more comfortable that the final decision in respect of their health is made by a qualified health practitioner who will decide what is in their best interests.
Whilst it is possible to download free templates online, any person who wishes to make an advanced decision or advanced statement is encouraged to seek independent advice. The benefit of doing so is to ensure that they fully understand the potential implications of executing such a document and that should they wish to do so, the document includes all the necessary information to reflect their current wishes and feelings.
