Advance decision to refuse treatment

It is a general principle of law that people have a right to consent or refuse treatment. The courts recognise that adults have the right to say in advance that they want to refuse treatment if they lose capacity in the future - even if this results in their death.

The Mental Capacity Act (2005) sections 24 to 26 set out when a person can make a decision to refuse treatment. This applies if:

  • The person is 18 years of age or over
  • They have the capacity to make an advance decision about treatment

Healthcare professionals must follow an advance decision is it is valid and applies to the current circumstances the person is involved in. However, there must be proof that the decision:

  • exists
  • is valid
  • is applicable in the current circumstances - these tests are a legal requirement under section 25(1)

It is up to the individual to decide if they want to refuse treatment in advance. Some people make advance decisions even though there is no prospect of illness at that time. This might be because they wish to retain control over what happens to them when they lose capacity to make decisions about their health and are no longer able to communicate their wishes. Some people may want to make an advance decision when they are thinking of making a will, some may consider it if they are diagnosed with a condition or specific disease.

Other people may prefer not to make an advance decision and leave health professionals to make decisions in their best interests at the time the decision needs to be made. Another option is to make a Lasting Power of Attorney so that a trusted family member or friend could make decisions.

Please remember that: 

  • You can only make an advance decision to refuse treatment 
  • Nobody has a legal right to demand specific treatment 
  • Next of kin has no legal right to refuse treatment or make any decisions about care and treatment on your behalf, but they should be consulted in decisions being made. 
  • Nobody can ask for procedures against the law, such as help committing suicide. The Mental Capacity Act specifically states that the Act does not change any of the laws relating to murder, manslaughter or helping someone to commit suicide

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