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Advance Directives

The Mental Capacity Act 2005 creates the legal structure to allow people to make their own decisions regarding medical treatment, and for the first time makes it clear that Advance Directives, also known as Living Wills, could be legally binding. 

An Advance Directive is a statement in which you set out your wishes for refusing medical treatment when you no longer have capacity to make the decisions yourself. Advance Directives can only be used to refuse treatment, not insist on a particular treatment. 

If you have specific or strong views on what treatment you would not want to receive should you lose capacity in the future, you may find it reassuring to have an Advance Directive. This can offer peace of mind that your wishes will not be ignored if you are unable to take part in the decisions being made. You can cancel your Advance Directive at any time when you still have mental capacity. 

Advance Directives are legally binding, although must be in writing should you want to refuse treatment that would prolong your life. Doctors must follow a valid and applicable Advance Directive, even if it goes against what they personally consider to be in your best interests.

An Advance Directive can be used for various situations, for example:

  • If you are diagnosed with a terminal illness and would like to refuse specific treatments should they become necessary
  • If you have any form of dementia and worry that your wishes will be ignored when you lose mental capacity
  • If you are concerned that you may develop an illness in future that would mean you could not make decisions for yourself
  • If you have strong views over what treatment you would refuse, for example blood transfusions or amputations
  • If you wish to appoint someone to assist in making decisions about your treatment when you are no longer able

There are, however, certain things that an Advance Directive cannot dictate, for example:

  • Anything illegal, such as euthanasia, or demand inappropriate or unnecessary treatment
  • Refusal of food and drink by mouth
  • Refusal of palliative care, for example pain killers
  • Refusal of basic nursing care

Great care is needed in drafting an Advance Directive as they must be valid and applicable to the circumstances if they are to be legally binding. We can discuss your requirements and wishes with you and draft a bespoke Advance Directive to deal with your specific situation. We also strongly recommend you discuss your Advance Directive with your Doctor. You can then let your Doctor and relatives have copies so your wishes can be followed should the situation arise.

If you have made an Advance Directive before 1st October 2007 refusing life sustaining treatment, it is likely that it may not meet the strict criteria set out by the Mental Capacity Act. Therefore we suggest you review your Advance Decision, and remake it if necessary to meet the prescribed requirements of the Mental Capacity Act.