Advance decisions to refuse treatment

An advance decision lets you refuse a specific medical treatment now, for a time in the future when you cannot decide for yourself. It is also called an advance decision to refuse treatment (ADRT) or a living will. If it is valid and applies, your doctors must follow it. But it can only refuse, it names nobody to speak for you, and a health and welfare lasting power of attorney (LPA) does far more.

Make your LPA instead

What else is an advance decision called?

• Advance decision. The term used in sections 24 to 26 of the Mental Capacity Act 2005.
• Advance decision to refuse treatment, or ADRT. The full name, often used in hospitals and by the NHS.
• Living will. The everyday name. Our guide to living wills covers what the term does and does not mean.

It is different from an advance statement, which records your general wishes and is not legally binding.

Who can make an advance decision?

Under section 24(1), you must be 18 or over and have the mental capacity to make the decision. You must name the treatment you are refusing, and you can describe the circumstances in which the refusal applies. Section 24(2) allows you to do this in everyday language. You do not need medical terms.

What can an advance decision refuse?

Only treatment. The Code of Practice says People can only make advance decisions to refuse treatment. Nobody can use one to demand a treatment.

Two limits are worth knowing:

• Basic care. According to the Code of Practice, an advance decision cannot refuse the care needed to keep you comfortable, such as warmth, shelter, keeping you clean and the offer of food and water by mouth. It can refuse artificial nutrition and hydration.
• Life-sustaining treatment. Refusing treatment that keeps you alive, such as ventilation or resuscitation, needs the extra formalities below.

What are the rules for refusing life-sustaining treatment?

Most advance decisions can be written or spoken. A refusal of life-sustaining treatment cannot. Under section 25(5) and (6) it must:

• Say so. It must include a statement that it applies even if life is at risk.
• Be in writing.
• Be signed. By you, or by someone else in your presence and at your direction.
• Be witnessed. The witness signs in your presence.

When does an advance decision not count?

The Act separates two questions: is it valid, and does it apply to the treatment in question.

It is not valid, under section 25(2), if you:

• Withdrew it while you had capacity.
• Later made an LPA giving your attorneys authority over the same treatment.
• Did anything else clearly inconsistent with it remaining your fixed decision.

It does not apply, under section 25(3) and (4), if:

• You still have capacity to decide about the treatment at the time.
• The treatment is different from the one you named.
• The circumstances you described are absent.
• Something has changed that you did not foresee, and there are reasonable grounds to believe it would have changed your decision.

That last point is why age matters. The Code of Practice says old decisions are not automatically invalid or inapplicable, but they may raise doubts. It advises you to review and update yours regularly, for example when new treatments appear or your illness reaches a new stage.

What happens if it is valid and applies?

Section 26(1) gives it the same effect as a refusal you make at the time, with capacity. Your doctors must follow it. If there is real doubt, the Court of Protection can decide whether it exists, is valid and applies. While that question is with the court, section 26(5) allows life-sustaining treatment to continue.

How does an advance decision work with an LPA?

The order you make them in matters.

• Advance decision first, LPA later. If the later health and welfare LPA gives your attorneys authority over the same treatment, the advance decision is no longer valid (section 25(2)(b)).
• LPA first, advance decision later. Your attorneys must respect it. Section 11(7)(b) makes their authority subject to your advance decisions.

An LPA only lets your attorneys accept or refuse life-sustaining treatment if it says so expressly (section 11(8)). If you want both documents, review them together so they do not conflict. Kate Scott explains how to choose between them, and when to have both, in living wills v health and welfare LPAs.

What are the benefits of an advance decision?

• It is your own decision. Nobody else weighs it up or overrules it, if it is valid and applies.
• It is legally binding. Your doctors must follow it. Under section 26(3), a doctor who withholds treatment in the reasonable belief that it is valid and applies is protected.
• It needs no attorney. It can suit someone who has nobody they would want to appoint.
• There is no registration. You do not pay a fee or send it to anyone.

What are the drawbacks of an advance decision?

• Refusals only. It cannot ask for treatment you would want.
• Narrow. It covers named treatments. Where you live and your daily care are outside it.
• Easy to fall outside. A different treatment, missing circumstances or a change you did not foresee can each mean it does not apply.
• It needs upkeep. An old decision may raise doubts, so it needs regular review.
• Nobody speaks for you. Your family has no legal authority to argue your case.
• It has to be found. The NHS suggests keeping a copy in your medical records and telling people where it is. In an emergency, a document nobody knows about cannot help.

Why most people choose a health and welfare LPA

A health and welfare LPA puts people you trust in the room when decisions are made. Your attorneys can talk to your doctors, agree to treatment as well as refuse it, and decide about your care and where you live. You can give them power over life-sustaining treatment, and write your firm wishes into the LPA as preferences and instructions. See which type of LPA you need to decide whether to make both types.

Frequently asked questions

What is an advance decision to refuse treatment?

It is a decision, made while you have capacity and are 18 or over, to refuse a named treatment. It takes effect later, if you lack capacity to consent to that treatment. It is also called an ADRT or a living will.

Does an advance decision have to be in writing?

Not always. An advance decision can be written or spoken. A refusal of life-sustaining treatment must be in writing, signed by you, signed by a witness and say that it applies even if your life is at risk.

Can an advance decision refuse food and water?

It can refuse artificial nutrition and hydration, such as feeding through a tube. The Code of Practice says it cannot refuse basic care that keeps you comfortable, which includes the offer of food and water by mouth.

Does a lasting power of attorney override an advance decision?

It can. If you make a health and welfare LPA after your advance decision, and it gives your attorneys authority over the same treatment, the advance decision is no longer valid. An LPA made before the advance decision does not cancel it.

How do I cancel an advance decision?

You can withdraw or change it at any time while you have capacity. A withdrawal does not need to be in writing, but telling your doctor and anyone holding a copy avoids confusion.

This page covers the law in England and Wales. It is general information, not legal or medical advice. If you are thinking about refusing treatment in advance, please talk to your doctor about what the treatment involves.

Sources

• Mental Capacity Act 2005, section 24 on legislation.gov.uk
• Mental Capacity Act 2005, section 25 on legislation.gov.uk
• Mental Capacity Act 2005, section 26 on legislation.gov.uk
• Mental Capacity Act 2005, section 11 on legislation.gov.uk
• Mental Capacity Act Code of Practice, chapter 9, paragraphs 9.5, 9.10, 9.28 to 9.30, on GOV.UK
• Advance decision to refuse treatment (living will) on NHS