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Mental Capacity Act 2005

Explains 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. Applies to England and Wales.

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

What's 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 don't 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're an adult (aged 18 or over)
  • You can make your advance statement orally or in writing. If you want to refuse life-sustaining treatment, you must make it in writing

Do health professionals have to follow my advance decision?

Health professionals generally have to follow advance decisions, as they're legally binding. 

If you’re an informal patient, health professionals should follow your advance decision. They should do this even if you’re being treated in hospital.

But in an emergency, healthcare professionals may give you treatment even if it’s not clear that your advance decision covers the particular treatment.

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. This said that if he ever lost the ability to look after himself because of his memory problems, and couldn’t communicate his decisions, he wouldn’t wish to be resuscitated if he developed heart problems.

One day, Ravi was involved in a car accident. He was seriously injured and unconscious because of his injuries. The Accident and Emergency (A&E) staff resuscitated him when his heart stopped beating.

It’s unlikely a court will say they’ve acted unlawfully, because they weren’t sure whether his advance decision applied to this situation.

What are the exceptions?

There are some situations where a doctor or healthcare professional wouldn't need to follow your advance decision:

  • If you've asked for a certain type of medical treatment. You can put your preference for a certain medical treatment into a document. Healthcare professionals should take this into account. But it won’t be legally binding, unlike a decision to refuse a treatment. So, a healthcare professional does not legally have to follow it.
  • If it's not clear what type of treatment you wish to refuse in your advance decision.
  • If you've cancelled your advance decision since making it.
  • If you've named an attorney under a lasting power of attorney and given them the power to make the same decisions or refusals about anything specific you've mentioned in your advance decision.
  • If you've regained the capacity to make decisions.
  • If there's been a change of circumstances since you made your advance decision, and you may not make the same decision now. This might include recent advances in medical treatment and improvements in medication.
  • If you're detained under the Mental Health Act and receiving treatment for your mental health problem. But this doesn’t include electroconvulsive therapy (ECT). See our section on refusing treatment if you're sectioned to find out more.  

Example 1

Kemma made an advance decision some years ago. It listed antipsychotic medication that she didn’t wish to be given if she became ill and lost the capacity to refuse treatment. She also stated some forms of medication that she wouldn’t mind taking.

The health professionals realise that Kemma’s decision mentions medication that's no longer used to treat her problem. Circumstances have changed since Kemma made her advance decision. There have been recent advances in medical treatment and improvements in medication. So her advance decision doesn't have to be followed.

The health professionals also don’t have to follow Kemma’s treatment preferences in the same way as they would follow her refusals. The law says that only refusals of treatment are legally binding.

How do I make an advance decision?

You can make an advance decision:

  • In writing
  • By telling a health professional
  • 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 very important if your instructions are complex.
  • It'll be easier to get advice about your instructions.
  • If your instructions include a refusal of future possible life-saving treatment, you must put them in writing. See our section on refusing life-saving treatment to find out more about this.

You may want to ask someone to act as a witness for your advance decision. This person can confirm that you have capacity to make the decision. This can help avoid questions in the future about whether you had capacity at the time of the decision.

If you can't make the decision in writing, you can:

  • Tell your advance decision to a doctor, nurse or other health professional 
  • 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 do both these things:

  • Mention the circumstances where you want your advance decision to apply
  • Tell your decision to your family, close friends and anyone who's caring for you

Can I use an advanced decision to refuse treatment that saves or prolongs my life?

You can use an advance decision to refuse life-saving treatment. But you must do certain things to make sure the advance decision is valid. You will need to:

  • 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
  • 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. You can also ask other professionals 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'm sectioned?

You cannot generally use an advance decision to refuse future mental health treatment that happens when you are sectioned under the Mental Health Act 1983. For example, you cannot refuse mental health medication in this way, in case you’re 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 end up being sectioned.

The only situation where healthcare professional can choose not to follow your advance decision is in an emergency. Emergencies that need treatment with ECT are unlikely to happen.

Example 2

Steve is very clear in his advance decision that if he ever loses capacity in the future, he doesn’t want to be given electroconvulsive therapy (ECT). This includes using it as a life-saving treatment.

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

Steve's advance decision must be followed because he’s followed all the requirements for refusing life-saving treatment. And because ECT refusals are binding. This is true even if the person is then sectioned under the Mental Health Act, unless ECT is given in an emergency.

Can I make an advance decision if I'm sectioned?

Yes. You can make an advance decision while you’re sectioned in hospital.

But you must have the capacity to make decisions about future treatment at the time you write your advance decision. So your capacity cannot be affected by:

  • Your mental health condition
  • Any medication you may be taking

Can I change my advance decision?

Yes. You can change your advance decision at any time.

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 should check your advance decision regularly to make sure it still represents what you want. 

How do I change my advance decision?

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 about which advance decision applies.
  • Tell other people that you’ve made a new advance decision. This could include your family or close friends, GP, carer or any other professionals involved in your healthcare. You should also tell them that you wish to destroy the old one.

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

  • By the time you’ve lost capacity and health professionals are trying to follow your advance decision, you’ll probably not be able to answer questions about it
  • It’ll be difficult to follow your advance decision if there’s confusion around it, or if it’s not clear whether you have altered it

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

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

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

What's an advance statement?

An advance statement is a written document that can set out your preferences for different areas of your life. For example, where you'd like to live, or any care or support you want to receive. You can ask a professional to follow this document if you ever lose capacity to make these decisions yourself.

Unlike an advance decision, an advance statement isn't legally binding. Professionals and others who may be carrying out your instructions in the future won't usually be acting unlawfully if they don’t follow your instructions.

An advance statement should focus on what care you might like to receive, not anything you wish to refuse. If you want to outline any treatments you wish to refuse, you should use an advance decision. You can make both an advance decision and an advance statement if you want to.

If you lose capacity, anyone looking after your affairs should look at your advance statement. They should do this when making decisions in your best interests.

< Financial decisions Lasting power of attorney (LPA) >

This information was published in April 2023. We'll revise it in 2026.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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