Regulating doctors, ensuring good medical practice

End of life care: When advance refusals are binding

  1. 68. If a patient lacks capacity and information about a written or verbal advance refusal of treatment is recorded in their notes or is otherwise brought to your attention, you must bear in mind that valid and applicable advance refusals must be respected. A valid advance refusal that is clearly applicable to the patient’s present circumstances will be legally binding in England and Wales24 (unless it relates to life-prolonging treatment, in which case further legal criteria must be met). Valid and applicable advance refusals are potentially binding in Scotland25 and Northern Ireland26, although this has not yet been tested in the courts.

 

Footnotes

24 The code of practice supporting the Mental Capacity Act 2005, which uses the legal term ‘advance decision’, sets out detailed criteria that determine when advance decisions about life-prolonging treatments are legally binding – see the legal annex.

25 The code of practice supporting the Adults with Incapacity (Scotland) Act 2000, which uses the legal term ‘advance directive’, gives advice on their legal status and how advance directives should be taken into account in decisions about treatment.

26 In Northern Ireland there is no statutory provision or case law covering advance refusals, but it is likely that the principles established in English case law precedents would be followed.

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