When will an advanced decision not be upheld?

An advanced decision can be made if a person wishes to express their view about medical intervention at a time that they may not have capacity to do so. They may wish to refuse a specific type of treatment at some time in the future.

The benefits of having such a decision recorded is that it provides health care professionals clear guidance as to your wishes and feelings on particular issues regarding your care and treatment. They take effect at a moment that you are not able to make the decision for yourself, for example if you had lost mental capacity to make the decision for yourself, or you were in surgery.

They are simple, clear, and straight forward documents and do not require any other person to be involved in your decision. They are usually thought of as being as powerful as if you were standing there making the decision yourself. This is extremely important if you find yourself in a position where you are no longer able to make or communicate these decisions.

All individuals are entitled to make an advanced decision as long as they are over the age of 18 and have the requisite level of mental capacity to make such decisions.

If a person decides that they wish to refuse life-saving treatment in the future, the decision needs to be:

  • Formerly recorded in writing;
  • Signed by the person making the advanced decision; and
  • The signature of the person making the decision needs to be witnessed.

A person's decision will be legally binding as long as it complies with the Mental Capacity Act, is valid and is applicable to the situation. This decision will usually take precedence over decisions made by others on your behalf which are deemed to be in your best interests.

However, advanced decisions are not always straight forward, this is evident in the recent case of Re PW (Jehovah’s Witness: Validity of Advance Decision), Re [2021] EWCOP 52 whereby the Court of Protection ruled that an advanced decision made 20 years previously was in fact invalid. Complexities can also arise if a person has a Lasting Power of Attorney for Health and Welfare and an advance decision, and specialist advice should always be taken in this situation.

Background

PW made an advanced decision when they were 60 years of age and it was held on a register of advanced decisions made by Jehovah's Witnesses. The advanced decision had been made at a time when PW possessed the requisite level of mental capacity and included clear instructions to refuse blood or blood products even if her life was at risk. 

Mr Justice Poole found that an advanced decision could be invalidated by the decision-maker if they were found to have done something which was clearly inconsistent with their advanced decision.

In this case it was held that on the balance of probabilities, PW had done a number of things which appeared inconsistent with her advanced decision. The judge highlighted the following key examples:

  1. PW had made an apparently valid Health & Welfare LPA which appointed her children to act as her attorneys and authorised them to make decisions about her health. This was despite knowing her children didn't hold the same religious views as her own. PW had also not expressed that she wanted them to refuse blood transfusions or blood products on her behalf.
     
  2. PW had stated that she wished to be resuscitated if necessary and asked for a Do Not Resuscitate (DNR) notice to be removed from her medical records.
     
  3. PW had informed a medical professional that she would consent to having a blood transfusion if it saved her life but requested that the blood be "free from diseases".

The fact that the advanced decision was made a significant number of years prior to the event occurring, and the fact that PW had not reviewed or updated the decision, was also take into account.

Mr Justice Poole found that it was in PW's best interests for her to receive the life-saving blood transfusion that she required.

Precautionary measures

This case highlights the importance of regularly reviewing any advanced decisions you decide to make.

There is no requirement that a person should update or review their advanced decision, however, it appears that a judge may take into account the length of time which has passed, when coming to a decision as to whether the advanced decision should stand.

The Code of Practice for the Mental Capacity Act 2005 recommends advanced decisions should be reviewed and updated regularly. However, it does not unfortunately define what is meant by regularly.

We would advise that advanced decisions are reviewed in line with a review of your Will and / or Lasting Power of Attorney. As per the Government's guidance, you should review your Will along with any other important documentation, at least every 5 years. This may be more regularly if you experience a major change in your life. 

The case concerning PW signifies the importance of ensuring that:

  • Your decisions and feelings are properly recorded; and
  • These decisions and feelings appear consistent.

If the above is followed, you will maximise the impact and effectiveness of your advance decision.

Elle McDonald is solicitor specialising in will and trust disputes and contentious Court of Protection. If you have any queries on the topic of this article please do not hesitate to contact Elle the trust disputes team here.