Advance Decisions are legally binding

There have been some misleading articles in the press recently about the legal status of advance decisions (also known as living wills).

The Mental Capacity Act 2005 gives Advance Decisions statutory force in England and Wales. An adult with capacity can make an Advance Decision to refuse medical treatment in the event that they cannot make or communicate that decision themselves. As long as the Advance Decision meets certain requirements, it must be respected by doctors.

But the Daily Mail recently ran a headline stating: ‘Don’t obey orders in a living will, judge orders doctors: Ruling means patients in an unconscious state cannot die without the case going before a court’, followed the next day by ‘End-of-life cases must go to court’ in the Times.

Both articles suggest that before an Advance Decision could be respected by doctors, a case would have to go to court. This is simply not the case.

The articles were prompted by a speech given by a judge – they are not based on a new legal ruling or law.

However, there is one area where judges have raised doubt about how Advance Decisions should work in practice, which urgently needs to be addressed. A practice direction (which is a document setting out court procedure) states that all cases which involve withholding or withdrawing artificial nutrition and hydration from a person in a permanent vegetative or minimally conscious state should go to court for a decision.

We will do everything we can to ensure this issue is clarified as quickly as possible.

In the meantime people should feel reassured that Advance Decisions are legally binding, and there is nothing in the wording of the Mental Capacity Act to suggest that Advance Decisions need to be taken to court to be respected.

If you have had any problems with doctors respecting your own or a loved one’s Advance Decision, please contact Compassion in Dying on 0800 999 2434.