Commentary on Sections Advance decisions to refuse treatment Section 24: Advance decisions to refuse treatment: general
84.Sections 24 to 26 deal with advance decisions to refuse treatment. Some people already choose to make such decisions and their legal effect has been analysed in a number of judicial decisions. It has been confirmed by the High Court that a competent adult patient’s anticipatory refusal of consent remains binding and effective notwithstanding that he has subsequently become incompetent (HE v NHS Trust A and AE [2003] EWHC 1017 (Fam), a case concerning a refusal of blood transfusion). Broadly, the sections seek to codify and clarify the current common law rules, integrating them into the broader scheme of the Act. There would otherwise be a lacuna in the scheme of the Act and the powers of the new court. Many general forms of advance statement or “living will” will be important and relevant as “past wishes” of the person for the purposes of the best interests checklist in section 4. An “advance decision” as defined in these sections is a special type of advance statement that represents an actual decision to refuse treatment, albeit at an earlier date. As now, it will therefore be decisive in certain circumstances.
85.The key characteristics of an “advance decision” for the purposes of the Act are set out in subsection (1) of this section. It must be made by a person who is 18 or over and at a time when the person has capacity to make it. A qualifying advance decision must specify the treatment that is being refused, although this can be in lay terms (for example using “tummy” instead of stomach). It may specify particular circumstances, again in lay terms, in which the refusal will apply. A person can change or completely withdraw the advance decision if he has capacity to do so (subsection (3)). Subsection (4) confirms that the withdrawal, including a partial withdrawal, of an advance decision does not need to be in writing and can be by any means. Subsection (5) confirms that an alteration of an advance decision does not need to be in writing, unless it applies to an advance decision refusing life-sustaining treatment, in which case formalities will need to be satisfied in order for it to apply.