• What's New
• Bill News
• Government policies
• Race Equality Impact Assessment
• History of reform
• The Parliamentary Process

Advance statements and Advance directives

Under English common law, any unambiguous and informed advance refusals of treatment (advance directives) of competent adults are legally binding after the loss of capacity. The judgements given in Re T (Adult: Refusal of Treatment)153 and Airedale NHS Trust v Bland 154 , set out that an advance refusal of treatment which is ‘clearly established’ and ‘applicable in all the circumstances’ is as effective as the decision of a capable adult. An advance directive:

• can only be effective if it was made when the patient had the capacity to make it;
• need not be in writing;
• cannot be used to require a doctor to carry out a positive act which is contrary to his clinical judgement;
• can be overridden by the Mental Health Act (1983) so that a directive which refusesany treatment for mental disorder will be rendered ineffective;
• will be ineffective if at the time when it was made the patient did not appreciate the implications of refusing treatment;
• can be made by a detained patient who possesses the required capacity; and
• can be revoked if the patient has the necessary capacity to do so.

Advance refusals of treatment will be provided for under statute law when the Mental Capacity Act 2005 comes into effect.

The decisions made in an advance directive can be ignored by a doctor if the Mental Health Act 1983 is used to override a person’s express wishes regarding treatment. A patient who is detained under certain sections of the Mental Health Act (for example Section 2, Section 3, Section 37) can have their refusal to have a specific treatment overridden if the proposed treatment is for ‘mental disorder’. However, their treatmentpreferences should always be considered with respect by mental health professionals.

However, advance requests for treatment (advance statements) are not legally binding in that no one can require a particular medical treatment be given. The Mental Capacity Act 2005 provides that when determining an incapacitated person’s best interests, any written statement made when they had capacity should be considered.