Advance statements are not just a healthcare issue

A recent case has highlighted the importance of advance statements or directives for those who want to specify how they would like to be treated by healthcare professionals (HCP) and others involved in their care following loss
of capacity.

Generally, an individual
has the right to agree or to refuse treatment. However,
they can only make an advance decision of refusal. A person is not able to demand specific treatment whether in advance or otherwise.

Similarly, a person cannot request treatment that will assist in ending their own life.

The Mental Capacity Act 2005 (MCA) defines an advance statement as one made by someone over 18, who is still capable of refusing specified medical treatment for when they may lack mental capacity. The statement can be cancelled at any time provided the person still has capacity.

A HCP must establish
whether the statement is valid and applicable by considering whether the person has done anything that clearly goes against that decision, withdrawn their decision, subsequently conferred the power to make that decision
on an attorney, or would have changed their decision if they had known more about the current circumstances.

There are no particular formalities required in an advance statement unless it deals with life-sustaining treatment. But this can lead to evidential difficulties unless it is recorded contemporaneously.

A decision on life-sustaining treatment must be in writing, signed by the individual or on their direction in their presence. This must be witnessed.

Section 4 (6) (a) of the
MCA 2005 states that where someone has lost their capacity, a person determining best interests, must consider, so far as is reasonably ascertainable, the following:

• the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity);
• the beliefs and values that would probably influence their decision if they had capacity; and
• the other factors that they would probably consider if they were able to do so.

Individual choice

The MCA code of practice suggests that evidence of the above can be found in a person’s cultural background, religious beliefs, political convictions or past behaviour or habits.

So, for example, someone
who has spent their life as a vegan would want that to
be respected; a practising Catholic would want to continue attending a Catholic rather than an Anglican Sunday service.

In RGB v Cwm Taf Health Board and Ors [2013] EWHC B23 (COP), Mrs B suffered from advanced Alzheimer’s disease and was being treated in hospital.
Her husband applied for a declaration that the health board had deprived him of a right to family life, and a right
to the freedom of assembly
and association.

He also applied for an order for access to his wife and for
the health board to provide
him with information about
her well-being.

Mrs B made an advance statement before her dementia took hold indicating that she did not want her husband to be contacted if she became unwell and that if she was discharged from hospital, she would want to live with her daughter. She also instigated divorce proceedings.

No alternative

The court decided that there
was no evidence of any undue influence and the health board was entirely right to act on
Mrs B’s wishes after she lost capacity. In fact, they had
no alternative.

Mr Justice Moor cited Mr Justice Munby in HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam) that “an advance directive is after all nothing more or less than embodiment of the patient’s autonomy and right
to self-determination…”.

Only the patient can revoke their own advance directive
and if they have not done so,
it remains valid and must
be followed. SJ

Ann Stanyer is a partner and head of private client at Wedlake Bell