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Legal briefing: Advance directives
1. How an advance directive works
2. Limits to what an advance directive can do
3. How to make an advance directive
4. How to make your advance directive effective
5. What to do next
An advance directive (also known as an 'advance statement', 'advance refusal' or 'living will') is a way of making a person's views known if he or she should become mentally incapable of giving consent to treatment, or making informed choices about treatment, at some future time. Doctors and other healthcare workers must usually take these wishes (advance statements) into account. Instructions refusing treatment are usually referred to as advance directives (In this briefing note the term 'advance directive' will be used throughout.) There are, however, certain conditions which need to be satisfied before an advance directive can be valid and there are some limits to what a person can direct.
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1. How an advance directive works
Doctors and health professionals cannot normally give you treatment without your consent. If you are incapable of consenting, they can treat you according to how they see your 'best interests'. However, the courts have confirmed that if you set out your wishes in advance they will be valid at the time treatment is being considered, even if you have by that time become incapable of giving consent.
An advance directive is your instruction to your doctor, or other healthcare worker who might be treating you in the future, as to how you wish to be treated if you become unable to make a proper decision. These instructions cannot be ignored by your doctor unless
(a) the advance directive does not apply to the particular situation which arises
(b) the advance directive is not clear or
(c) the Mental Health Act allows professionals to override a person's instructions.
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2. Limits to what an advance directive can do
An advance directive cannot compel a doctor to give you a particular type of treatment. This is a clinical decision and may also be influenced by other factors such as financial considerations. An advance directive can only be used to direct what treatment you do not wish to have.
An advance directive may also not be effective to prevent treatment being given where this is required as a medical necessity to save life.
More importantly, an advance directive cannot override the compulsory treatment provisions of the Mental Health Act where a patient has been detained. In these circumstances a doctor is permitted (subject to the terms of the Act) to administer treatment to a patient, whether or not the patient consents, for the purposes of treating 'mental disorder'.
However,
(i) an advance directive in respect of a patient who has been admitted into hospital on a voluntary basis will still be valid and
(ii) an advance directive can still apply to treatment for physical disorders.
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3. How to make an advance directive
(a) What it should cover
Legally, an advance directive does not have to be in writing. However, a written statement is preferable as it helps to avoid any doubt about what you intend. An advance directive needs to be carefully drafted so that its terms are clear. It does not need to use specific language, but it must be obvious what treatment you are refusing or consenting to have, and in what circumstances. It is a good idea to review your advance directive from time to time to ensure that it still reflects your wishes.
An advance directive must cover the particular circumstances which arise. For example, it should cover possible advances in drug treatment to which you might wish to consent, otherwise a blanket refusal of medication would mean that you would not be given the new drugs.
The statement should include your name, address, the date it was drafted and your signature. You should also include a statement in the document to the effect that you understand what you are doing and have the necessary legal capacity to make such a directive.
(b) Witnesses
There is no legal requirement to have your signature witnessed but it is a good idea to have your statement signed by someone who will be able to say that you were mentally competent at the time you made it and understood what you were doing.
Having a doctor from your treatment team certify that this was the case would avoid any later arguments that you were not competent. However, it is important to ensure that your wishes are not compromised by the presence of your medical team, so you may want to have the support of an advocate, for example, at any meeting with your doctor, You may also wish to take advice from a lawyer before you finalise your directive.
(c) Changing your mind
Provided that you are competent at the time, any written directive which you have made in the past can be overridden by your express wishes made verbally at a future date, but someone would need to prove that you had indeed changed your mind. If you decide to change your mind you should destroy all past written directives and ensure that your new one is brought to the attention of your medical team. Your new directive should state that your previous directives (if any) have been superseded.
(d) Where to send it
It is important that your advance directive is entered into your medical notes so that in an emergency it is found and acted upon. You should therefore send a copy to your GP and to any hospital which is treating you (or has done so recently). Copies of your directive should also be sent to other important people who may be consulted over your treatment such as your nearest relative.
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4. How to make your advance directive effective
The most important condition that needs to be satisfied, in order for an advance directive to be valid, is that the person making it is mentally competent at the time the directive is made. In other words, he or she must understand the nature of the directive and the effect which it has. Subsequent incapacity does not invalidate the directive, but please note the possible application of the Mental Health Act mentioned in section 2 above.
Being diagnosed as 'mentally ill' or being 'sectioned' does not make someone legally incapable of making an advance directive or deciding what treatment they would prefer. However, it is advisable to set out in the directive a statement to the effect that you have the necessary competence to decide what treatment you want.
It is sensible to set out in the directive the reasons why you have come to the conclusion you have, so that it is clear that you have the necessary degree of competence to decide what treatment you are happy to have or do not wish to have and have not based your decision on wrong information. You should set out
(a) what you understand about the treatment to which you are consenting or refusing to have
(b) your belief about why that particular treatment has been given to you in the past or might be given to you in the future
(c) your reasons for why you are making your decision now.
An example of an advance directive can be downloaded from the Related topics box at the top of this page.
Your advance directive will come into effect if and when you lose the capacity to make decisions about your treatment. Until that time you can make the decisions yourself without reference to any written statement prepared in advance.
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5. What to do next
If you need help in drafting an advance directive, or you need further information, you should either contact a solicitor who deals with this area of the law, or you can call the Mind Legal Advice line on 020 8519 2122 between 2pm and 4.30pm on Mondays, Wednesdays and Fridays. Alternatively, you could contact your care coordinator, GP, advocacy service or Citizens Advice Bureau. The names of specialist mental health and community care solicitors can be found in the Community Legal Services directory for your area or on the CLS website at: www.clsdirect.org.uk
This note is only a brief explanation of the law and is not a substitute for detailed legal advice.
Advance directive pdf file
Advance directive guidance notes
Mind Legal Unit
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