Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department.
- Great Britain. Lord Chancellor's Department
- Date:
- 1997
Licence: Open Government Licence
Credit: Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department. Source: Wellcome Collection.
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![Advance Statements About Health Care BACKGROUND The Law Commission’s Report attempts to clarify the legal status of health care decisions which are intended to have effect when a patient loses capacity. Such decisions are often called advance directives, or living wills. The Law Commission used the term advance statement, however, as the terms “advance directive” and “living will” suggest that anticipatory decisions will always be made in writing. That is not always the case. However a decision is communicated, it can specify the types of treatment which a patient would or would not find acceptable in certain circumstances. Where an advance statement is limited to specifying treatment which the patient would not consider acceptable, it is commonly called an advance refusal. The Government recognises the strength of feeling on this subject. This was the area of the Law Commission’s work which aroused the greatest public concern, and it is clear that this is a matter on which many have deep rooted personal, moral, religious and ethical views. The Government does not believe that it would be appropriate to reach any conclusions in this area in the absence of fresh consultation — not just on the detailed plans put forward by the Law Commission, but also on the need for and the merits of legislation in this area generally. In seeking views on these issues and on the detail of the Law Commission’s recommendations, the Government would wish to clarify two points, about which correspondence received after the publication of the Law Commission’s report revealed some misconceptions. First, some people thought the Law Commission’s recommendations would make legal provision for the first time for advance statements. This is not the case. This misconception seems to be based on the assumption that advance statements have no basis in existing law. In reality, however, certain forms of advance statement already have full effect at common law. The judgements in Re T', together with those in Airedale NHS Trust v Bland? in both the Court of Appeal and the House of Lords indicate that an advance refusal which is ‘clearly established’ and ‘applicable in the circumstances’ is as effective as the decision of a capable adult. The case of Re C? further clarified the position. As the Law Commission stated in their Report on Mental Incapacity: “An advance refusal made with capacity simply survives any supervening 1 ReT (Adult: Refusal of Treatment) [1992] WLR 782. 2 Airedale NHS Trust v Bland [1993] AC 789.](https://iiif.wellcomecollection.org/image/b32221782_0031.jp2/full/800%2C/0/default.jpg)
