The Assisted Decision-Making (Capacity) Act 2015 was passed in 2015. The minister for health is expected to sign the enacting statutory instrument within the next 12 months. One of the provisions of the act is the creation of an Advance Healthcare Directive (AHD). These sometimes are known as “living wills”.
An (AHD) is a written statement made by an adult with sufficient mental capacity (the ability to understand, retain and use or weigh up the information in order to make a decision). It sets out preferences about treatment decisions that the person does not want to receive in the future, if a time comes where they lack capacity to make such decisions or cannot communicate their decision.
AHDs mainly concern a person’s right to refuse treatment – even if the refusal is considered by others to be unwise, made for non-medical reasons or may result in death, provided that the person making the directive had the decision-making capacity at the time of making the AHD.
The 2015 Act provides that a request for specific treatment set out in AHD is not legally binding (a person cannot demand treatment that is unnecessary) but it must be taken into consideration if it relates to treatment that is relevant to the medical condition of the maker of the advance healthcare directive. If the request is valid and applicable to the specific treatment then doctors are legally bound to follow them.
An AHD can be revoked or altered in writing provided the person has the capacity to do so. Any alteration of an AHD must be signed and witnessed in the same manner as the original AHD.
An AHD allows a person to appoint a Designated Healthcare Representative. This is someone who is authorised to interpret the AHD or to make healthcare decisions on behalf of the person who made it. They can have as much authority as the person decides to give them, up to and including the power to consent to, or refuse life-sustaining treatment.
An Advance Healthcare Directive will come into effect only if the person making it loses mental capacity and is unable to communicate their healthcare decisions.
David Williams, Solicitor