Advance decisions are otherwise known as “Living Wills” because they should be in writing, signed by you, and your signature must be witnessed.
Verbal advance decisions can be given, but are not ideal and obviously need to be recorded very carefully by the health care professional concerned. That person will also need to consider whether a verbal advance decision is valid and applicable. For the avoidance of doubt it is therefore much better to have a written document.
The main feature of an advance decision is that it allows you to refuse specified treatment that you might need in the future if you lack capacity to consent or refuse at that time. The advance decision must be precise; a statement giving a general wish to be treated is not enough. If it is to direct the health care professionals to withhold life-sustaining treatment then it must be written and witnessed.
An advance decision can be cancelled at any time if you have capacity, either verbally or in writing. Obviously a written cancellation is better and you should let all parties concerned know, e.g. your family, your GP and anyone who has treated you under the understanding that you had an advance decision in place.
An advance decision will only be used if you, the patient, lack capacity. Up until that point you are, of course, in control of your own treatment and your own decisions. Inability to speak does not mean that you lack capacity. The exertion of hand pressure or communication by blinking is accepted.
You can alternatively make a Health and Welfare Lasting Power of Attorney. Be careful if you have several documents in place: a Lasting Power of Attorney made after an advance decision will make the advance decision invalid if the Power of Attorney document gives the attorney the authority to make decisions about the same treatment. An advance decision will overrule a decision made by an attorney under an earlier Personal Welfare Lasting Power of Attorney. An attorney cannot therefore give consent to treatment that has been refused by you.
The effect of both Health and Welfare Lasting Powers of Attorney and advance decisions is to protect health care professionals from liability if they stop or withhold treatment on the basis of a document that they reasonably believe is valid and applicable.
Once again, the above shows the need for clarity and certainty, and the best practice is to tell all your family members, your GP and your consultant about any such document that you have written.
If you would like any further information on this, please contact Julia Routen, Private Client Solicitor, on 01295 204012 or email firstname.lastname@example.org.