An Introduction to the Mental Capacity Act

& Palliative Care

PRESENTATION 4
ADVANCE DECISIONS TO REFUSE TREATMENT, CRIMINAL OFFENCES & SUMMARY

SLIDE 1

This is the last of four presentations introducing the Mental Capacity Act and Palliative Care. This
presentation focuses on Advance decisions to refuse treatment, criminal offences and also
provides a summary of the Act.

SLIDE 2: ADVANCE DECISIONS TO REFUSE TREATMENT

The Mental Capacity Act makes new law about Advance Decisions to Refuse Treatment. These
are sometimes called “living wills” or “advance directives”.

The first thing to remember is that advance decisions to refuse treatment only become relevant if
the patient does not have the capacity to make that decision for himself. If he has capacity to make
the decision, then you should ask him whether or not he wants the treatment.

Importantly, the Act distinguishes between advance decisions to refuse medical treatment, and
advance decisions to request medical treatment. Under the Act, it is only advance decisions to
refuse treatment that will be legally binding, and then only if they are both valid and applicable
under the Act.

Any other kind of request, whether it is a request for treatment, or a refusal of treatment that is not
valid and applicable under the Act, will not be legally binding. It must still be taken into account
when assessing best interests – just as with any other kind of evidence about the patient’s wishes
and preferences, but it is not legally binding. This is a very important distinction to make. If you are
presented with evidence that an incapacitated patient has said previously that he wishes to refuse
the treatment, you need to decide whether that statement is legally binding or not, and we consider
this on the next slides.

SLIDE 3: ADVANCE DECISIONS 2

An advance decision to refuse treatment will not be valid if the person:

i. has withdrawn it (withdrawals need not be in writing);

ii. subsequently created a Lasting Power of Attorney, which confers authority to consent
or refuse treatment that the advance decision relates to (because creating such an
LPA would be clearly inconsistent with a prior advance decision);
iii. Or done anything else clearly inconsistent with the advance decision

An advance decision is not applicable if:

i. at the material time – i.e. when the treatment decision has to be made – the person has
capacity in relation to the treatment in question;
ii. The treatment in question is not that specified in the advance decision;
iii. Any circumstances specified in the advance decision are absent;

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 iv. There are reasonable grounds to believe that circumstances exist which the person did
not anticipate when he made the advance decision and which would have affected his
decision had he known.

SLIDE 4: ADVANCE DECISIONS 3

One of the most important aspects of this is the need to be specific, both about the treatment that
is being refused and, if circumstances are identified, the circumstances in which that treatment is to
be refused. It is still possible to create a Jehovah’s Witness type of advance refusal – e.g. the
refusal of all blood transfusions in any circumstances. However, if you identify circumstances in
which the advance decision is to apply, the Act says that all those circumstances must exist if the
advance decision is to be applicable.

It is likely to be much easier to create a valid and applicable advance decision once a patient has a
specific diagnosis, and it becomes possible to anticipate events along the disease trajectory. It will
be much harder to create an advance decision to refuse treatment for a healthy person who has no
diagnosis. It will be good practice to review any advance decision to refuse treatment on an agreed
periodic basis as part of the advance care planning process with a patient.

A valid and applicable advance decision will bind the holder of an LPA, unless the LPA was made
subsequently and confers authority on the holder to consent to or refuse treatment covered by the
advance decision. The key is the order in which the documents were created: an LPA created
subsequent to an advance decision, and referring expressly to the same treatment, would be
inconsistent with the earlier advance decision.

If it is decided that there is a valid and applicable advance decision to refuse the treatment in
question, that is legally binding, just as it would be if the patient had capacity and refused that
treatment in person. The patient’s wishes must be respected in such circumstances. The patient
has, in effect, already taken responsibility for the decision from those treating him, and made the
decision himself. Staff are under an obligation to follow the advance decision to refuse treatment.
Best interests does not apply.

If staff are satisfied that there is a valid and applicable advance decision to refuse treatment in
existence, they would be liable for assault if nevertheless they carried out or continued the
specified treatment despite that advance decision.

SLIDE 5: ADVANCE DECISIONS 4

Additional rules apply to advance decisions in relation to life-sustaining treatment:

i. The patient must state that the advance decision is to apply to the specified treatment
even if his life is at risk as a result;
ii. The advance decision must be in writing, signed either by the patient or by somebody
else on his behalf and at his direction, and signed by a witness.

There will be a need to develop clarity of language in relation to advance decisions to refuse
treatment.

As should be clear from the previous slides, the key question is whether the patient’s wishes are
legally binding, under a valid and applicable advance decision to refuse treatment, or whether they
need to be taken into account but are not in fact binding. The MCA refers to “advance decisions”
as being legally binding, and “statements” as needing to be taken into account.

The MCA does not use language such as “advance directives” or “living wills” and these terms are
not helpful because they do not say whether a document is legally binding or not.

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SLIDE 6: A QUICK SUMMARY

This slide attempts to summarise the main points of the MCA in a short and simple way.

Ask yourself the following questions:

1. What decision has to be made?

2. Does the patient have capacity to make it for himself?
3. What support is required to help the patient make it for himself?
4. If the patient does not have the capacity to make the decision for himself:
a. Is there a proxy decision-maker, either under a Lasting Power of Attorney or a
Deputy appointed by the Court - to make the decision for him?
b. If the decision involves treatment, is there a valid and applicable advance decision
refusing it?
5. In all cases where the patient doesn’t have capacity and there is no valid & applicable
advance decision refusing treatment, ask: what are the patient’s best interests?

SLIDE 7: CRIMINAL OFFENCES

The MCA introduces two new criminal offences: wilful neglect; and ill-treatment. The courts will
have to decide what level of misconduct is so serious that it should carry a criminal sanction. The
Code of Practice contains some illustrations which help indicate what might be a criminal offence.
People found guilty of these offences may be sent to prison.

SLIDE 8: WHEN DOES THE MCA COME INTO FORCE?

Parts of the MCA came into force on 1 April 2007 – the provisions about IMCAs and the two
criminal offences. Every other part of the Act comes into force on 1 October 2007.