Mental Capacity Act 2005

A general guide on how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself.

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This information applies to England and Wales.
This information applies to adults. It doesn't apply to children unless specifically stated.

Advance decisions

What is an advance decision?

An advance decision is a statement of instructions about what medical and healthcare treatment you want to refuse in the future, in case you lose the capacity to make these decisions. For example, you could use it to say you do not wish to be resuscitated if you develop certain medical conditions in the future.

You can only make an advance decision if:

you have the capacity to make those decisions now
you are an adult (at least 18 years old).

Do health professionals have to follow my advance decision?

Generally, yes. An advance decision will be legally binding, and must be followed by health professionals, if you have made a clear and valid advance decision and you have followed the procedures set out in the Mental Capacity Act.

If you are an informal patient, health professionals should follow your advance decision, even if you are being treated in hospital. However, treatment may be given to you in an emergency, especially if it is not clear if your advance decision covers the particular treatment the professionals want to give you to deal with the immediate situation.

Example

Ravi has a serious brain injury which has affected his ability to make decisions. While he still had capacity, he made an advance decision saying that if he ever lost the ability to look after himself because of his memory problems, and could not communicate his decisions, he would not wish to be resuscitated if he had a heart attack.

One day, Ravi is involved in a car accident. He is seriously injured and unconscious because of his injuries. The accident and emergency staff resuscitate him when his heart stops beating.

It is unlikely a court will say they have acted unlawfully because they were not sure whether his advance decision applied to this particular situation.

What are the exceptions?

There are some situations where a doctor or healthcare professional would not need to follow your advance decision:

If you have asked for a certain type of medical treatment. When you ask for a certain type of medical treatment, as opposed to refusing one, you can put these preferences down in a document, and it should be taken into account. However, it will not be legally binding so a doctor or professional does not have to follow it.
If it is not clear what type of treatment you wish to refuse in your advance decision.
If you have cancelled your advance decision since making it.
If you have named an attorney under a lasting power of attorney and given them the power to make the same decisions or refusals you have mentioned in your advance decision, since making it.
If you have become capable of making the decisions yourself that you mention in your advance decision, at the time that treatment is offered to you.
If there has been a change of circumstances since you made your advance decision, so that it is doubtful whether you would make the same decision now. This might include recent advances in medical treatment and improvements in medication.

Example 1

Kemma made an advance decision some years ago with a list of antipsychotics that she did not wish to be given if she ever became ill and lost the capacity to refuse treatment. She also stated some forms of medication that she would not mind having.

The health professionals realise that Kemma’s decision mentions medication that is no longer used to treat her condition. As circumstances have changed since she made her advance decision, and there have been recent advances in medical treatment and improvements in medication, her advance decision does not have to be followed.

Also, they do not have to follow her treatment preferences in the same way as they would follow her refusals, because the law says that only refusals of treatment are legally binding.

Example 2

Steve is very clear in his advance decision that if he ever loses capacity in the future, he does not want to be given electroconvulsive therapy (ECT) in any circumstances, even if this is for life saving treatment.

Steve has made his advance decision in writing, has signed it and had it witnessed and signed by the witness.

Steve's advance decision must be followed because he has followed all the requirements for refusing life saving treatment, and also because ECT refusals are binding even if the person is then sectioned under the Mental Health Act.

See: Can I refuse treatment that saves or prolongs my life? and Can I refuse future treatment that I could be made to have if I am sectioned?

How do I make an advance decision?

You can make an advance decision in writing, by telling a health professional, or by having a note made in your hospital or GP medical notes.

If you can, you should try to make your advance decision in writing because:

your instructions will be clearer and easier to understand - this is especially important if your instructions are complex
it will be easier to get advice about your instructions
if your instructions include a refusal of future possible life-saving treatment you must set them down in writing and include the information listed below.

If you can’t make an advance decision in writing, you can:

tell your advance decision to someone like a doctor, nurse, or other health professional, or
have a note of your advance decision made in your hospital or GP medical notes.

If you want to tell someone your advance decision instead of writing it down, you should:

mention the circumstances where you want your advance decision to apply, including a time when you would not have the capacity to make the treatment decisions yourself in the future
also tell your decision to your family, close friends and anyone who is caring for you.

Can I refuse treatment that saves or prolongs my life?

Yes, but certain treatment can still be given to you if it is necessary to save or prolong your life. Health professionals can give you this treatment lawfully without your consent if you lack the capacity to make this kind of decision.

If you would like to use an advance decision to refuse life-saving treatment, you should:

make your advance decision in writing
make it clear that you understand you are refusing life-saving treatment and that you understand the consequences
include a statement confirming that your advance decision applies to life-saving treatment
sign your advance decision in front of a witness, and get them to sign it too
include all relevant personal details, including your name and address.

Even if you do these things, there are times when professionals and others may go against your advance decision without breaking the law. For example, you can’t use an advance decision to:

refuse all healthcare under any circumstances, such as basic nursing care and being kept clean
ask a professional or anyone else to do an act which is against the law.

If your advance decision is likely to be complicated or involve refusing life-saving treatment, you should get legal advice on what to say (the Law Society provides details of solicitors you can get in touch with) or get someone else to help you with it, such as an advocate or healthcare professional.

Can I refuse future treatment that I could be made to have if I am sectioned?

You cannot generally use an advance decision to refuse treatment that might be given in the future for your mental health problems if you are sectioned under the Mental Health Act 1983 at that time. For example, you cannot refuse mental health medication in this way for when you are sectioned in the future.

The exception is with electroconvulsive therapy (ECT). You can use an advance decision to refuse ECT in the future, even if you are sectioned at the time when it could be given.

The only situation where your advance decision can be not followed is in an emergency, and emergencies that need treatment with ECT are unlikely to happen.

Can I make an advance decision if I am sectioned?

Yes, you can make an advance decision even if you are sectioned and in hospital under the Mental Health Act.

Remember that you still need the capacity to make decisions about your treatment at the time you are writing your advance decision - that is, you should try to make sure your capacity to make decisions about your treatment is not affected by:

your mental health condition, or
any medication you may be taking.

Can I use an advance decision to appoint a healthcare attorney?

No, there is a standard way of appointing a healthcare attorney, and official forms that you must use.

If you have made an advance decision, you should be careful about appointing an attorney afterwards.

If you give your healthcare attorney power to make the same type of decisions you have made in your advance decision, this could make your advance decision invalid or partly invalid. This is because the law says that you have acted inconsistently with your advance decision and presumes that you want your attorney to take over the power to make these decisions instead.

However, there is no reason why you cannot make an advance decision and a lasting power of attorney covering financial and property decisions at the same time, because an advance decision will not cover financial and property matters.

Can I change my advance decision?

Yes – you can change your advance decision at any time, and the Mental Capacity Act does not have a particular way for you to do it.

You may need to change your advance decision because your circumstances have changed since you made it. For example, you may have:

got married or entered a civil partnership
become a parent
changed your family relationships in other ways.

You need to look at your advance decision regularly to make sure it still represents what you want.

If you want to change your advance decision, you should do the following:

Do it in writing.
Cancel and destroy your old advance decision and make a new one if you can. This helps to avoid any confusion as to which advance decision applies.
Tell other people such as your family or close friends, GP, carer or relevant healthcare professionals that you have made a new advance decision and that you wish to destroy the old one.
If your advance decision includes a refusal of life-saving treatment, you must change your advance decision in writing. If you want to cancel your refusal of life-saving treatment, and are unable to do it in writing at the time, you should tell healthcare professionals who are treating you and anyone close to you as soon as possible, and try to get it put in your medical notes. Then change your advance decision in writing or make a new one as soon as you can.

It is important to make any changes to your advance decision as clear as possible because:

by the time you have lost capacity and health professionals are trying to follow your advance decision, you will probably not be able to answer questions about it
it will be difficult to follow your advance decision if there is confusion around it or if it is not clear whether you have altered it.

What happens if there is disagreement over the meaning of my advance decision?

If there is any doubt about the meaning of your advance decision, the Court of Protection can decide what it means.

This might happen, for example, if health professionals think your advance decision says one thing, but your family or close friends think it says another.

Can I set out my preferences for the future in any other way?

Yes, you can make an advance statement.

An advance statement:

is a written document that sets out your preferences - and not refusals of treatment. You can ask a professional to follow this document if you ever lose capacity to make these decisions yourself.
is not legally binding. This means that professionals and others who may be carrying out your instructions in the future will not normally be acting unlawfully if they do not follow your instructions.
should be looked at when thinking about your best interests. If you lose capacity to make decisions, any decisions made on your behalf should be made in your best interests. So, whoever is looking after your affairs after you have lost capacity should refer to your advance statement if you have left one.

Differences between an advance decision and advance statement

There are some important differences between an advance decision and an advance statement.

An advance decision is a written document or spoken statement that sets out your refusals of treatment. It is legally binding as long as you follow the procedures in the Mental Capacity Act and could be enforced in a court if necessary. It must be followed by professionals whenever decisions are made about your healthcare treatment after you have lost capacity.

An advance statement is a statement of your general wishes and care preferences. For example your wishes on where you would like to live, or the type of care and support you want to receive. It is not legally binding, though it should be referred to when decisions are being made in your best interests.

You can make both an advance decision and an advance statement if you want to.

Mind and Compassion in Dying have produced a factsheet explaining how advance decisions are followed and how advance statements can help in planning for future treatment and care.

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This information was published in November 2017. We will revise it in 2019.

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