Advance Decisions – Why Are They Important?

Year Published: 2021

The COVID-19 pandemic has undoubtedly forced many people to be confronted with the reality of life and death. It has made people aware of the importance of taking action in order to ensure that their own lives are in order, addressing legal loose ends that may have been previously put off, such as Wills, lasting powers of attorney and advance decisions.

An advance decision, or ‘living Will’, is a legal document setting out your instructions for the refusal of medical treatment. It is not possible under the current law of England and Wales to demand a certain treatment, but it is possible to refuse treatment if you are well enough to do so.

However, unpredictable circumstances may occur that leave you unable to refuse life-sustaining treatment, for example an accident or an illness. If you had not made an advance decision or a health and welfare lasting power of attorney before the accident/illness, the clinical team must use their own judgement on whether to proceed with a certain treatment or not, and the preservation of life at all costs is often the driving force.

If your family disagree with the clinical team, an application to the Court of Protection for a judicial best interest declaration might be their only option. However, this is a stressful and often slow and expensive process, and the decision could arrive too late. Also, the Court’s decision may not give the outcome that you or your family would have wanted.

Many people are unaware that a family has no decision-making power in the clinical process at all, unless the patient had appointed them as health and welfare attorneys.

An advance decision can set out the precise set of circumstances that you might want to refuse life sustaining treatment. For example, you may wish for at least two doctors to agree that there is no prospect of recovery to a specified level, such as consciousness, communication or mobility. A valid and applicable advance decision is legally enforceable, and doctors will not be able administer treatment in the circumstances you have specified.

Assisted suicide is currently against the law in England and Wales, but it is very much within the law to refuse future life-sustaining treatment. Advance decisions are the mechanisms for doing so.

If you would like more information on advance decisions or health and welfare LPAs, contact Genevieve Powrie, Associate Solicitor, on 01625 442146 or email [email protected].


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