Mental Capacity Act 2005

Advance decisions and statements of wishes

Advance decisions to refuse treatment

The Act makes it possible for someone, who is over 18 years old and has mental capacity to do this, to make an advance decision to refuse specified treatment should they lack capacity in the future. The Act sets out clear safeguards for the making and application of advance decisions.

Full details of this can be found in Chapter 9 of the Mental Capacity Act code of practice or on the website of the Office of the Public Guardian http://www.publicguardian.gov.uk/index.htm

The code of practice says that a valid advance decision has the same effect as a decision that is made by a person who has capacity, so health care professionals should follow advanced decisions if it applies to the particular circumstances that arise.

Non life sustaining treatment

• Advance decisions that do not deal with life sustaining treatment can be verbal or written, in any format.
• They must state what treatment is to be refused.
• They must set out the circumstances when the refusal of treatment should apply
• The advance decision will only apply when the person lacks capacity to consent or refuse treatment.

Life sustaining treatment

Life sustaining treatment is that which is necessary to sustain life in any given situation. In certain circumstances this may mean the use of antibiotics or giving artificial nutrition.

• Advance decisions that refuse life sustaining treatment must be in writing, if the patient has mental capacity but cannot write the advance decisions they can ask someone to do this for them.
• The decision must be signed, if the person cannot do this for themselves then they may ask someone else to sign it on their behalf, in their presence.
• The signing of the statement must be witnessed and signed by the witness. If someone has signed on behalf of the person, they must indicate that the person directed the signing and was present when it was done.
• The advance decision must state that the advance decision applies to the specified treatment even if life is at risk.

The Mental Capacity Act code of practice says that written advanced decisions should contain the following information:

• Details of the person, name, date of birth, address, distinguishing features
• Name and address of GP
• A statement that the decision is to be used if the person ever lacks capacity to make treatment decisions
• A clear statement of the decision, the treatment to be refused, and the circumstances in which the decision will apply
• The date the document has been written
• Signature of person (or someone else signing in their presence)
• Witness signature (essential for life sustaining treatment decisions)

An advance decision can be withdrawn by the person at any time, either verbally or in writing.

Advance decisions can refuse treatment. They cannot demand specific treatments, however people can state what their wishes would be regarding treatment options.

In the absence of an advance decision, healthcare professionals will make treatment decisions in the best interests of patients who lack mental capacity to consent.

Advance decisions may not be applicable if:

• A Lasting Power of Attorney, with authority to make these health decisions, is made after the advance decision was signed
• The advance decision refuses treatment for a mental disorder and the person is detained under the Mental Health Act
• The person has done something which clearly indicates that they have changed their mind whilst they still had capacity
• There are grounds for believing that there are changes in circumstances since the advance decision was made that the person could not have foreseen, this may include medical developments which would have been likely to alter the person’s decision.

Statement of wishes

Information about a persons wishes and feelings regarding treatments, particularly any written statements must be taken into consideration by decision makers when they are making best interests decisions on behalf of a person who lacks capacity.

This should include advance decisions if they are found to not be valid for any reason. Even though they are not valid, their contents should be taken into account when deciding what is in the person’s best interests.