What can an Advance Decision do?

An Advance Decision is a means of making sure your family and the professionals providing treatment to you know what your personal wishes for that treatment are even when you are unable to inform them yourself. This may be because you have lost capacity as a result of an illness such as dementia, or even due to a temporary lack of consciousness brought about by an accident.

If you feel strongly that you would not want to receive particular types of treatment in certain situations then this can be included in your Advance Decision. If you then find yourself in a situation that your Advance Decision applies to, a doctor would not be able to provide that treatment to you. A common example would be a person who would like to refuse blood products because of their religious beliefs.



What can't an Advance Decision do?

You can't use an Advance Decision to request certain types of treatment. While everyone has the right to refuse treatment, even if it results in their death, no one has the right to insist on a particular treatment.

While you can refuse treatment accepting that this refusal will result in your death, you can't use this type of document to ask or encourage someone to actually help you end your life. Assisted suicide is illegal in England & Wales.



Are they legally binding?

As long as they are drafted and signed correctly, and actually apply to the situation you are in at the time the decision to administer treatment needs to be made, Advance Decisions are legally binding. To make one you need to have mental capacity to make these kinds of decisions and you need to be over 18.

To make sure your Advance Decision is legally binding it also needs to meet the following requirements:

- It must be in writing and signed by you.

- If it makes decisions about refusing life sustaining treatment it also needs to be signed by an independent witness - someone who has no interest in your estate, and include a statement that you wish the Advance Decision to apply even if your life is at risk.

- It must clearly state what treatment you would refuse and in what circumstances it applies.

We would always advise that you seek advice from a professional when making an Advance Decision rather than trying to draft it yourself. This way you can be sure that it will be drafted correctly.

The last requirement is that for it to apply you can't have said or done anything while you still had capacity that contradicted the statements you'd made in the Advance Decision.

This isn't something that can be accounted for within the Advance Decision itself of course, but it does mean that it's best practice to frequently review your document. Some drafters will include a 'review' section on the last page where you can sign and date your Advance Decision at regular intervals to confirm that you've reviewed it and you are still happy with it.



Anything else I need to know?

An Advance Decision is a powerful document, but it's not of much use to you if no one knows it exists. We strongly recommend that a copy is given to your doctor to place on your medical records so they are aware of it if you need any treatment. We also recommend that you make your family aware of it as well and discuss it with them, although this may be difficult.


A case study example

In the case of Brenda Grant, she had an advance directive drawn up stating that if she suffered from certain ailments or lost mental capacity then treatment should not be given to prolong her life. It also stated that she should not be given food and that any distressing symptoms should be controlled by pain relief, even if this treatment would shorten her life.

In 2012 Mrs Grant suffered a stroke that left her unable to swallow, walk, or talk. She spent almost three months in George Eliot Hospital before being fitted with a stomach peg, meaning she could be fed directly, and then discharged to a nursing home. George Eliot Hospital misplaced her advance directive, losing it within a pile of medical notes. This led to her being fed artificially for 22 months despite her advance directive that refused this type of treatment.

Mrs Grant's children weren't initially aware of the advance directive, but were made aware of it by her GP prior to her readmission to hospital. The GP then took the side of the family and helped them argue that the advance directive should be respected. This led to treatment being withdrawn and Mrs Grant passing away four days later.

Mrs Grant's children decided to take legal advice to highlight the case and avoid the same thing happening to others. The George Eliot Hospital Trust admitted liability, apologised for its failure and agreed to pay the family £45,000 in an out of court settlement.


What about Health & Welfare Lasting Powers of Attorney (LPA)?

If an LPA is created after an advance decision, the attorneys named in the LPA will be able to override what is written in the advance decision, providing they have the authority to give or refuse life sustaining treatment on behalf of the donor.

If an advance decision is created after the health and welfare LPA where the attorneys are given the authority to make life sustaining treatment decisions, the attorneys named in the LPA will not be able to consent to any treatment that you have refused and which is set out in your advance decision.

Where the LPA does not give the attorneys authority to give or refuse consent to life sustaining treatment, this does not override the advance decision.

However, if the advance decision should be taken into account and used alongside the LPA rather than overridden, the advice from the Office of Public Guardian (OPG) is that an instruction should be included in section 7 of the health and welfare LPA making reference to the advance decision. A professional advisor can help you draft this correctly. A copy of the advance decision should be included when the LPA is sent to the OPG for registration.


Articles from the Society of Will Writers of which AL-HQ Law & More are members to give you peace of mind for code-compliant advice and services.