Advance care planning
A voluntary process of discussion and review to help an individual who has capacity to anticipate how their condition may affect them in the future. If they wish, they can also record choices or decisions relating to their care and treatment so that these can then be referred to by their carers (whether professional or family carers) in the event that they lose capacity to decide once their illness progresses.

Under the terms of the Mental Capacity Act 2005, formalised outcomes of advance care planning might include one or more of the following:

  • advance statements to inform subsequent best interests decisions
  • advance decisions to refuse treatment which are legally binding if valid and applicable to the circumstances at hand
  • appointment of lasting powers of attorney (“health and welfare” and/or “property and affairs”).

More information:

Advance decision to refuse treatment
An advance decision to refuse treatment) is a decision to refuse a specific treatment made in advance by a person who has capacity to do so. This decision only applies at a future time when that person lacks capacity to consent to, or refuse, the specified treatment. This is set out in section 24 of the Mental Capacity Act. Specific rules apply to advance decisions to refuse life-sustaining treatment.

An advance decision to refuse treatment:

  • can be made only by someone over the age of 18 who has mental capacity
  • is a decision relating to refusal of specific treatment and may also include specific circumstances
  • can be verbal, but if an advance decision includes refusal of life sustaining treatment, it must be in writing, signed and witnessed and include the statement “even if life is at risk”
  • will only come into effect if the individual loses capacity
  • only comes into effect if the treatment and any circumstances are those specifically identified in the advance decision
  • is legally binding if valid and applicable to the circumstances
  • can be overridden by the Mental Health Act, but only for psychiatric treatment

More information:

Advance statement
This is a written statement (either written down by the person themselves or written down for them with their agreement) the person might make before losing capacity (Mental Capacity Act Code of Practice 2007)about their wishes and feelings regarding issues they wish to be considered in the case of future loss of capacity due to illness. This can include the type of medical treatment they would want or not want, where they would prefer to live or how they wish to be cared for.

Advance statements should be used to help find out what somebody’s wishes and feelings might be, as part of working out their best interests when they have lost the capacity to decide. They are not the same as advance decisions to refuse treatment and are not binding.

More information:

Best interests
Under the Mental Capacity Act 2005, any decision made or any action done for or on behalf of a person who lacks capacity must be done or made in their best interests. Decision makers must take into account all relevant factors that would be reasonable to consider. Section 5.13 of the Mental Capacity Act Code of Practice sets out a non-exhaustive checklist of common factors that must always be considered when trying to work out someone’s best interests.

Reference: Mental Capacity Act (2005) Code of Practice. Ministry of Justice 2007

Do not attempt cardiopulmonary resuscitation decision (DNACPR)
Cardiopulmonary resuscitation (CPR) is emergency treatment that supports the circulation of blood and/or air in the event of a respiratory and/or cardiac arrest.

A CPR decision is an opinion, in the case of a clinician or a decision in the case of an advance decision to refuse treatment for or against cardiopulmonary resuscitation. Such decisions only apply to restoring circulation or breathing. They do not decide the suitability of any other type of treatment, and never prevent the administration of basic comfort and healthcare needs.

Do not attempt cardiopulmonary resuscitation (DNACPR) decision only covers views about withholding CPR in the event of a future respiratory or cardiac arrest. It is completed by the clinician responsible for a person’s care.

More information:
Decisions relating to cardiopulmonary resuscitation. A joint statement from the British Medical Association, the Resuscitation Council (UK) and the Royal College of Nursing. (2007)

End of life
The General Medical Council defines people as “approaching the end of life” as those likely to die within the next 12 months. This includes individuals whose death is imminent (expected within a few hours or days), those with advanced, progressive, incurable conditions, general frailty and co-existing conditions, people at risk of dying from a sudden acute crisis in their existing condition and life-threatening acute conditions caused by sudden catastrophic events.

More information:
Treatment and care towards the end of life: good practice in decision making. General Medical Council (2010)

Lasting powers of attorney (LPA)
There are two different types of LPA:

A property and financial affairs LPA: this replaces the previous enduring power of attorney and does not have power to make health decisions. Enduring powers of attorney were replaced by lasting powers of attorney but may still be used if made and signed before October 2007.

A personal welfare LPA: this must be made while the individual has capacity, but only becomes active when they lack the capacity to make the required decision.

The LPA must act according to the principles of best interests. It can be extended to life-sustaining treatment decisions (called a personal welfare LPA including health), but this must be expressly contained in the original application. A personal welfare LPA (PW-LPA) only supersedes an advance decision to refuse treatment if it was appointed after the ADRT was made, and if the conditions of the PW-LPA cover the same issues as in the ADRT.

More information:
Mental Capacity Act 2005
Mental Capacity Act (2005) Code of Practice. Ministry of Justice 2007

Mental capacity
Mental capacity is the ability to make a decision. An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. Under the Mental Capacity Act 2005 (England and Wales), anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity

  • does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
  • if so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

Reference: Mental Capacity Act (2005) Code of Practice. Ministry of Justice 2007

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