Advance Directives

Originally published in June 2003

Advance Directives are decisions made whilst a person has the necessary mental capacity to do so which are intended to give effect to wishes as to how that person shall be treated or cared for if they subsequently lose capacity to make a treatment choice themselves in the future.

The Government has been reluctant to bring forward legislation on the issue of Advance Directives. However, the current law - which recognises Advance Directives - has been restated:

It is a general principle of law and medical practice that all adults have the right to consent to or refuse medical treatment. Advance statements are a means for patients to exercise that right by anticipating a time when they may lose the capacity to make or communicate a decision.

An advance statement contains a person's instructions as to which medical treatment that person would or would not be prepared to accept if he or she should subsequently lose the capacity to decide for himself or herself. An advance statement can request specific treatments. However, it is an important principle that health professionals are not legally bound to provide that treatment if it conflicts with their professional judgment about the most appropriate treatment to give to a patient just as they would not be bound to give a treatment to a patient with capacity. Nevertheless, the health professional may take the person's wishes into account when deciding on a course of action.

Advance statements are sometimes concerned with the refusal of life sustaining procedures in the event of a terminal illness. They have nothing to do with euthanasia or suicide. They cannot authorise a doctor to do anything which is illegal or which a person with capacity could not request a doctor to do.

Nor can they ask for treatment which is clinically inappropriate. Advance statements are simply a method whereby a person can exercise his or her right to accept or reject medical treatment. Euthanasia is and will remain illegal.

Adults with capacity have the right to refuse or withdraw their consent to medical treatment. Such a decision does not either have to be reasonable or to be justified to anyone apart from the individual who is making the decision. It follows that adults can define, in advance, which medical procedures they will or will not consent to at a time when that individual has become incapable of making or communicating that decision. The courts have approved this principle...