A decision an adult makes, when he has capacity, to refuse the giving or continuing of specific medical treatment in specific, future circumstances, when he has lost capacity. This is known as an Advanced Decision, or formerly, a Living Will.
If an advance decision is valid and applicable, those giving medical treatment must comply with it even if they do not consider it to be in the individual’s best interests. The incapacitated individual is therefore in the same position as an individual who has capacity, who is entitled to refuse medical treatment against the advice of healthcare professionals.
The decision-maker must satisfy both of the following conditions:
- They must be over the age of 18. Minors do not have an absolute right to refuse medical treatment. Although their wishes should be taken into account when considering whether treatment would be in their best interests, they can be overruled by the court or a person with parental responsibility.
- They must possess the mental capacity to make the decision. Where there is any doubt about the decision-maker’s capacity to make an advance decision, a full, reasoned and contemporaneous written assessment of capacity by a suitably qualified medical practitioner should be obtained.
The decision-maker may choose to specify particular circumstances in which the specified treatment is to be refused, but this is not a requirement. Both the specified treatment and any specified circumstances can be expressed in layman’s terms, although their meaning must be clear to those providing the decision-maker’s health care.
As a matter of general law, an advance decision is unlikely to be effective if made as a result of fraud, duress or undue influence.
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