Since 1 October 2007, people have had the right (under the Mental Capacity Act 2005) to make an ‘advance directive’, specifying the circumstances in which medical treatment should be refused.  An advance directive does not give the right to specify that a particular treatment should be applied, only the circumstances in which no treatment is to be given.

Many people may fear the consequences of executing an advance directive, thinking that their wishes may change and they will be bound by the consequences of their earlier decision, but there are several safeguards which apply.

An advance directive need not be followed when:

• it is not ‘applicable to treatment’ (i.e. not the treatment which the advance directive says should not be given);
• the circumstances specified in the advance directive are not present;
• there are reasonable grounds to consider that the person would have decided differently in the circumstances, the circumstances themselves being unanticipated;
• the advance directive itself is not properly executed;
• the person executing the advance directive has behaved previously in a manner inconsistent with it or withdrawn it; or
• the person has given another person authority to give or refuse consent for the treatment dealt with under the advance directive, by the execution of a lasting power of attorney that empowers the attorney to deal with medical decisions. 

To discuss your options for empowering your family or others you trust to manage your affairs if you become unable to deal with them yourself, contact Mohinder Chima on 020 7790 2000 or email [email protected].