Advance Decision

Section 24 of the Mental Capacity Act 2005 defines an advance decision as 'a decision made by a person (“P”), after he has reached 18 and when he has capacity to do so, that if' a specified treatment is later proposed in specified circumstances, and P then lacks capacity to consent, 'the specified treatment is not to be carried out or continued.' Once made, the decision does real legal work: section 26 provides that if P has made an advance decision which is valid and applicable, 'the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued' — in other words, it binds the treating clinicians as though P were validly refusing the treatment there and then.

Section 25 sets out when a decision loses that force. 'An advance decision is not valid if P' — among other things — 'has withdrawn the decision at a time when he had capacity to do so,' or has done something else clearly inconsistent with it remaining his fixed decision, or it is no longer applicable because circumstances have changed. Where the advance decision purports to refuse life-sustaining treatment, the Act adds formality requirements: such a decision is 'not applicable to life-sustaining treatment unless' it is verified by a statement that it applies even if life is at risk, and that statement and decision comply with a set of formalities — 'it is in writing,' 'it is signed by P or by another person in P's presence and by P's direction,' and 'the signature is made or acknowledged by P in the presence of a witness' who also signs it.