If health and care professionals do not abide by a valid and applicable Advance Decision or a decision made by a Health & Welfare Attorney, the implications are the same as if a mentally capable person’s decision is not followed. This guide aims to ensure that unauthorised care or treatment is not given.

Definitions in this guide:

• Advance Decision: the correct legal term for a ‘Living Will’ or ‘advance directive’
• LPA(H&W): a Lasting Power of Attorney (Health & Welfare), which was known as a Lasting Power of Attorney (Personal Welfare) prior to 2009

A mentally capable (competent) person can decide whether or not to accept the medical treatments or care recommended by health or care professionals.

It will only be necessary to consider an Advance Decision or LPA(H&W) if the person concerned has lost the mental capacity to decide. A person is deemed to be mentally incapable if they cannot communicate their decision. Otherwise, the three-stage* test for mental capacity is:

1. The diagnostic test. Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain (for example, a condition or trauma that affects the way their mind or brain works)? If no, the person is mentally capable. If yes, consider the second stage.
2. The functional test. Is the person unable to make a specific decision at the time that it needs to be made for one (or more) of the specific reasons given in the Mental Capacity Act 2005**? If no, the person is mentally capable. If yes, consider the third stage.
3. The causative nexus. Is the person’s inability to make the specific decision because of the impairment of, or disturbance in the functioning of, their mind or brain? If no, the person is mentally capable***. If yes, the person is mentally incapable.

*The Mental Capacity Act Code of Practice suggests that the test for capacity is in two stages, but the BMA and Law Society’s “Assessment of Mental Capacity – A Practical Guide for Doctors and Lawyers” suggests the three stages above.

**The Mental Capacity Act 2005 states that a person is considered unable to make a decision if they cannot understand information about the decision to be made, retain that information in their mind, and weigh that information as part of the decision making process, before being able to communicate their decision.

***The person who is unable to make their own decision – but whose inability stems from influence exercised over them by others (whether family members or otherwise), rather than as a result of any impairment or disturbance of their mind or brain – may need to be treated as ‘vulnerable’, and in need of statutory safeguarding.

If the person is mentally incapable of making a decision, it is then necessary to consider any:

• Advance Decision: a mentally incapable person may have previously decided (whilst mentally capable) what medical treatment they do or do not want in the future when they are mentally incapable
• LPA(H&W): a mentally incapable person may have previously appointed (whilst mentally capable) a Health & Welfare Attorney to decide for them in the future when they are mentally incapable. The LPA(H&W) must be registered with the Office of the Public Guardian (OPG). No other type of power of attorney confers any power to make medical or care decisions, whether an Enduring Power of Attorney (registered or unregistered) or a Lasting Power of Attorney (Property & Financial Affairs) which was known as a Lasting Power of Attorney (Property & Affairs) prior to 2009

If neither an Advance Decision nor an LPA(H&W) is in place, medical and care decisions have to be made in the person’s best interests.

If both an Advance Decision and an LPA(H&W) are in place, it is the document made most recently which takes priority. An Advance Decision is made on the date it is signed. An LPA(H&W) is made on the date it is registered with the OPG. There may be situations where an Advance Decision deals with certain decisions and an LPA(H&W) with others.

What decisions can be made in an Advance Decision?

An Advance Decision is a decision a person makes to refuse the giving or continuing of specific medical treatment (including life-sustaining treatment) in specific, future circumstances, when the person has lost capacity. If an Advance Decision is valid and applicable, health professionals must comply with it even if they do not consider it to be in the person’s best interests:

• Valid: the person who made the Advance Decision must have been over the age of 18, had mental capacity, and been free from undue influence at the time it was made. Where the Advance Decision is intended to refuse life-sustaining treatment, it must be in writing; be signed, dated and witnessed; and clearly indicate that it is to apply even if life is at risk as a result of it being followed
• Applicable: The wording of the Advance Decision has to be relevant to the medical circumstances on which a decision needs to be made. If the wording is vague or the person may not have been referring to medical conditions and/or practices that they are actually experiencing, then it need not be followed

An Advance Decision cannot be used to:

• Refuse basic nursing care essential to keep a person comfortable, such as washing, bathing and mouth care
• Refuse food or drink by mouth, although artificial nutrition or hydration (feeding by tubes) can be refused
• Refuse the use of measures solely designed to maintain comfort, such as painkillers
• Demand treatment that a healthcare team considers inappropriate
• Refuse treatment for mental disorder if the person is or is liable to be detained under the Mental Health Act 1983
• Ask for anything that is against the law, such as euthanasia or assisted suicide

Where a statement or document purporting to be an Advance Decision does not meet the above criteria, it can still be useful in assessing best interests but is not legally binding.

What decisions can be made by a Health & Welfare Attorney?

A LPA(H&W) Attorney can make decisions about anything that relates to the health and personal welfare of the person concerned. ‘Health and personal welfare’ might include:

• Medical matters (for example, giving or refusing consent to medical examination and treatment, to include decisions on whether to continue or withdraw treatment)
• Arrangements needed for the person concerned to be given medical, dental or optical treatment
• Where the person concerned should live and who they should live with, including moving to a care home
• Who may and may not have contact with the person concerned
• The day-to-day care of the person concerned, including what to eat and what to wear
• The assessment of and provision for any community care service provided to the person concerned
• Accessing personal information about the person concerned such as medical records
• Complaints about the care or treatment of the person concerned

If the person concerned wants the Attorney to have power to make decisions about life-sustaining treatment, that power must be expressly given in the LPA(H&W).

Life-sustaining treatment is any treatment a doctor considers necessary to keep the person concerned alive, whether an operation or organ transplant, or a course of antibiotics or artificial nutrition or hydration.

Summary

Is the person mentally capable of making, and communicating, a decision? If yes, do not consider any Advance Decision or LPA(H&W).

If the person is mentally incapable of making, or communicating, a decision, consider if either or both of an Advance Decision or LPA(H&W) is in place.

If neither of the above is in place, decisions have to be made in the person’s best interests.

If both of the above are in place, the document made most recently takes priority. If this is an Advance Decision, abide by its terms if it is valid and applicable. If this is an LPA(H&W), abide by the decisions of the Attorney as though these were being communicated by the person concerned.