When treatment decisions are made on behalf of a person who lacks capacity, they must be made in their best interests. However, sometimes the people involved in a patient’s care, such as their doctor and family, might disagree about what treatment and care should be given and under what circumstances.
In England and Wales, as long as an Advance Decision (Living Will) is valid and applicable then it’s legally binding and can’t be overruled by anyone. Giving unwanted medical treatment that has been refused in an Advance Decision can be classed as assault.
The only exception to this is if the patient made a Lasting Power of Attorney for Health and Welfare after their Advance Decision was completed. This is because the document that was made more recently will take priority when a decision needs to be made about a person’s treatment and care.
We have more information about the difference between Advance Decisions and LPAs here.
Deciding if an Advance Decision (Living Will) is valid and applicable
If a doctor believes that their patient’s Advance Decision isn’t valid or applicable to the situation they’re in, they may decide not to follow it.
There are many reasons why a doctor may believe that an Advance Decision isn’t valid or applicable. These might include, for example, if the patient has acted in a way that suggests they’ve changed their mind about their Advance Decision, or if the Advance Decision was made a long time ago.
If you disagree with the doctor’s assessment of your loved one’s Advance Decision (Living Will)
If there’s disagreement about whether your loved one’s Advance Decision is valid and applicable, ask for a meeting with the doctor in charge of their treatment. Explain why you think their assessment of your loved one’s refusal of treatment is wrong and discuss the doctor’s reasons for disagreeing.
Although the doctor in charge of your loved one’s treatment is responsible for the making the final decision, they should first consider all the evidence available to them This includes having conversations with family and consulting with the rest of the healthcare team.
If you and the doctor still disagree about which treatment is in your loved one’s best interests, you can ask for a second opinion or involve an advocate. If this doesn’t work you can make a formal complaint to the hospital or service provider about the doctor. You can also speak to a solicitor.
If you’re still not able to come to an agreement about your loved one’s treatment, the Court of Protection can also decide whether your loved one’s Advance Decision is valid and applicable. The Court of Protection is normally only used if other attempts to come to an agreement fail. There are also emergency procedures so that urgent cases can be dealt with quickly.
More informationContact Compassion in Dying on 0800 999 2434 if you and your loved one are in this situation. We may be able to help by putting you in touch with a legal expert.