The advanced statement and the advanced decision
It’s possible to make a person’s future wishes known if they ever lose their capacity to make decisions for themselves. There are 2 documents that can be written ahead of time. These are the advanced statement and the advanced decision. These must be written when the person is known to have capacity.
Advanced Statement
An advanced statement isn’t legally binding. However, it does make clear the wishes, beliefs and values of someone in relation to their future care and treatment. These may include:
- Whether any of the person’s religious or spiritual beliefs affect the treatment or care they may receive.
- Whether the person would like to be cared for at home, in a nursing home, hospital or hospice.
- Whether the person has any preferences in their daily routine e.g. their sleep pattern or washing habits.
- Whether there are practical things that need to be put in place should the person become unwell. For example looking after children or pets.
If the capacity of the person is ever questioned the individual assessing their best interests must take them into account.
It doesn’t need to be a signed written statement. It could be verbally stated to carers, relatives and friends. However, it is less disputable if it is written and signed by the person.
Advanced Decisions
This is a legally binding decision making process provided the person has met the criteria within their written or verbal statement to make it a valid advanced decision. It confirms what treatment a person decides to refuse in advance and may include treatment the person might wish to receive but this is only considered and cannot be insisted upon.
It has to be quite specific and explicit about what treatments the person does not want to receive. This is particularly important with directives in the statement around life-sustaining treatment. It must be very clear if the person does not want to receive this type of treatment and that they acknowledge this may result in their death.
It is common that this type of statement is created with the support of the person’s doctor or another medical professional in particular one who can affirm that the person has the capacity to make the decisions in the statement. This can be added to the person’s medical record so it is available to medical staff that may provide emergency treatment. It is helpful for this to be a written statement but verbal statements can also be valid and healthcare professionals should note these decisions in the person’s medical record.
Criteria for ensuring statement is valid
The criteria for making sure the statement is valid are:
- The person is aged 18 years or over.
- It specifies which treatments the person does and does not want to have.
- The circumstances within which the statement should apply are clearly explained.
- If it contains directives that pertain to life-sustaining treatment it must be written down, it must be signed by the person and have been witnessed by someone else who also signs the document.
- The decisions stated are made freely and the person is not subject to harassment.
- Since the statement was made the person has not said or done anything that would contradict the directives within it.
It is legally binding if it:
- Complies with the Mental Capacity Act.
- Is considered to be valid.
- Is applicable to the situation at hand.
This statement can be amended and updated whenever the person wishes to do so provided they continue to have the capacity to make those decisions.
Appointing a lasting power of attorney after making an advance decision makes it invalid if the attorney has been given authority to make decisions about the same treatment.
Any decisions about refusing treatment made in this statement about a person’s mental health may not apply if the person is currently or is liable to be subject to the Mental Health Act.
Some things to think about
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- Do you think advanced statements or advanced decisions are a good idea?
- What would you like to include in an advanced statement or advanced decision?