The term advance directive (increasingly being replaced by the term advance decision) means a statement explaining what medical treatment the individual would not want in the future, should that individual 'lack capacity' as defined by the Mental Capacity Act 2005. The term 'living will', whilst helping people to understand the concept, is somewhat misleading in that, unlike a will, it does not deal with money or property. Moreover, it can relate to all future treatment, not just that which may be immediately life-saving. An advance directive is legally binding in England and Wales. Except in the case where the individual decides to refuse life-saving treatment, it does not have to be written down, although most are and a written document is less likely to be challenged.
Whilst the patient has capacity, their word overrides anything contained in their advance directive or anything their legal representative may say.
If doctors have doubts about the validity of an advance decision they should consult early with their indemnity organisation and they may be able to apply to the Court of Protection to overrule it.
In Scotland and Northern Ireland the situation is somewhat different. Advance decisions are governed by common law rather than legislation. However, providing the decision was made by an adult with capacity and clearly sets out the person's intentions, it is highly likely that a court would consider it legally binding.
The term advance statement is sometimes used. This is an expression of the individual's desires and may refer to personal values, principles and religious beliefs. It is not legally binding but may act as a guide to a doctor who has to make a decision on behalf of a patient who lacks capacity.
Detailed below is the Garstang Medical Practice policy around supporting our patients over issues relating to advance directives / decisions.
Further NHS guidance with detailed support and useful links can be found here.
Bring the original document and identification containing a signature (e.g. Passport or Driving Licence).
Make an appointment at least 4 weeks in advance with your GP, advising the Receptionist that an Advance Directive is to be discussed.
Our medical records will be updated with an image of your documents and an alert placed on your record which will be seen each time your record is opened.
We will provide details to other health professionals involved with your treatment as needed, e.g. where a hospital or other referral is necessary.
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