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Validity of advance decisions

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A Buddhist has made it clear that in the event of his being unable to make his own decisions he does not wish to have pain relief. He is admitted in the terminal stages of cancer and clearly in pain. Nurses want to give him analgesia but his relatives are refusing.

Advance decisions, also known as living wills or advance refusals, have a statutory basis under the Mental Capacity Act 2005. A person setting up an advance decision must be at least 18 years of age and have the requisite mental capacity.

The statement can only refer to a refusal to receive treatment. No one can compel a health professional to provide treatment contrary to her or his professional discretion.

If life-sustaining treatment is to be refused, the statement must comply with the following conditions – it must be in writing, signed by the maker (or a person on their behalf), witnessed by someone who also signs it, and the maker must make it clear that it is their intention to refuse treatment, even if that could put their life at risk.

The effect of a valid advance refusal which relates to the treatment in question is that a health professional who withholds treatment on the basis of this statement would not be liable for that withholding.

Conversely, a health professional who ignored a valid, relevant advance refusal would be guilty of trespass to the person and even a criminal offence of assault.

On the other hand, if there are reasonable grounds for doubting the validity and/or applicability of an advance decision, then a person would not be liable for giving the specified treatment.

In cases of doubt, an application can be made to the Court of Protection in order to determine the validity and applicability
of the advance decision and, while its decision is awaited, life-saving treatment could be given.

Where an advance decision is valid and applicable to the treatment in question, relatives have no rights to object to health professionals withholding treatment.

In this situation, the Buddhist is refusing pain relief. When he is competent he is entitled to draw up an advance refusal which would cover treatment likely to be given at a later time, when he would lack the mental capacity to make his views known.

However, an advance decision only refers to treatment. What needs to be determined is whether pain relief is treatment or whether it is care, which cannot be included in an advance decision. Care is not defined in the Mental Capacity Act.

One view is that pain relief is care and that the Buddhist is therefore unable to refuse pain relief in an advance decision. The other view is that pain relief is treatment and so can be included in an advance refusal and if that refusal is valid and relevant, then health professionals can withhold it from the patient.

A decision of the Court of Protection is required to clarify the issue.

Bridgit Dimond, MA, LLB, DSA, AHSA, is a barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd

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