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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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:
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.
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.
There are some situations where a doctor or healthcare professional would not need to follow your advance decision:
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.
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?
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:
If you can’t make an advance decision in writing, you can:
If you want to tell someone your advance decision instead of writing it down, you should:
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:
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.
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.
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:
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.
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:
You need to look at your advance decision regularly to make sure it still represents what you want.
It is important to make any changes to your advance decision as clear as possible because:
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.
Yes, you can make an advance statement.
An 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.
Health professionals must act in your best interests before taking certain steps that affect your care and treatment.
The Mental Capacity Act has a best interests checklist, which outlines what health professionals need to consider before taking an action or decision for you while you lack capacity.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.'Capacity' means the ability to understand information and make decisions about your life. Sometimes it can also mean the ability to communicate decisions about your life.
For example, if you do not understand the information and are unable to make a decision about your treatment, you are said to 'lack capacity' to make decisions about your treatment.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.An advance statement is a written document that sets out your preferences (apart from refusals of treatment). It is not legally binding. You can ask a professional to follow this document if you ever lose capacity to make these decisions yourself.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.An advance decision is a statement of instructions about what medical treatment you want to refuse in case you lose the capacity to make these decisions in the future. It is legally binding.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.The Court of Protection makes decisions and appoints deputies to act on your behalf if you are unable to make decisions about your personal health, finance or welfare.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.The Mental Capacity Act 2005 is the law that tells you what you can do to plan ahead in case you can't make decisions for yourself, how you can ask someone else to make decisions for you and who can make decisions for you if you haven't planned ahead.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.
See our full list of legal terms.Being 'sectioned' means that you are kept in hospital under the Mental Health Act. There are different types of sections, each with different rules to keep you in hospital. The length of time that you can be kept in hospital depends on which section you are detained under.
See our pages on sectioning for more information.
See our full list of legal terms.An advocate is a person who can both listen to you and speak for you in times of need. Having an advocate can be helpful in situations where you are finding it difficult to make your views known, or to make people listen to them and take them into account.
See our pages on advocacy for more information.
See our full list of legal terms.An attorney is a person over the age of 18 whom you have appointed to make decisions on your behalf about your welfare and/or your property and financial affairs. You need an attorney if you are unable to make such decisions yourself. If you do not have the capacity to appoint an attorney, the Court of Protection will appoint a deputy to perform this role.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.A lasting power of attorney is a legal document that lets you appoint someone, called an attorney, to make decisions for you.
See our pages on the Mental Capacity Act for more information.
See our full list of legal terms.This has the same meaning as voluntary patient.
See our full list of legal terms.This information was published in November 2017.
This page is currently under review. All content was accurate when published.
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