LIVING WILLS ( or 'Advance Decisions' ) 

The Mental Capacity Act 2005 gives people in England and Wales a statutory right to refuse treatment through the use of an 'Advance Decision' (or 'Living Will' as it is more commonly known). An advance decision allows a person to state what forms of treatment they would or would not like should they become unable to communicate their wishes in the future. 

An advance decision can be about any treatment that a person does not want to receive at a time when they lack capacity, even if the refusal may result in their death. A fear of many people is that life-sustaining or life-prolonging treatments would be provided long after they were able to achieve a level of recovery, length of life or quality of life that would at present be considered to be acceptable or tolerable. An advance decision allows them to express these views clearly before they lose capacity, and in a way that is legally binding on those healthcare professionals that may treat them.

Some people have strong views about what types of treatment they don’t want to have, and would not consent to, and an advance decision allows them to express these views clearly before they lose capacity. If a person has made an advance decision refusing a particular medical treatment, and that advance decision is valid and applicable, then the decision should be followed and treatment should not be provided.

What are the rules about advance decisions to refuse treatment?

The MCA 2005 introduced a number of requirements for making an advance decision. A doctor making a decision about treatment must be satisfied that the advance decision exists, is valid and applicable to the particular treatment in question. A valid and applicable advance decision must be followed, and takes precedence over any view that anyone else has about what is in the bests interests of the person in question, even if the result is that the decision ends the person’s life. 

The main requirements for an advance decision are that:

 • It must be valid. The person must have had capacity to make the advance decision and must not have withdrawn it, or overridden it by making an LPA that relates to the treatment in the advance decision, or acted in a way that is clearly inconsistent with the advance decision.

 • It must be applicable. It should make clear which treatment is being refused (detailed medical terms do not have to be used) and it should explain which circumstances the refusal refers to. 

What are the rules about advance decisions to refuse life-sustaining treatment?

There are special requirements for making advance decisions to refuse life-sustaining treatment (any treatment that is needed to keep you alive and without which you might die). Such advance decisions must be in writing, signed and witnessed and the person making the advance decision must have stated that the decision is to apply even if their life is at risk. If the statement is separate to the advance decision this also needs to be signed and witnessed. An advance decision cannot be used to ask for medical treatment - it can only say what types of treatment a person would refuse. Nor can a person use it to ask for their life to be ended.

Where can I get more information about advance decisions?

For more information on advance decisions it is advisable to refer to the MCA 2005 'Code of Practice' . A number of patient support groups and organisations provide information about making an advance decision.  

For advice on Living Wills please contact us by email (and we'll call you back), or phone us direct on 0208 886 2344.