Many people are familiar with the term ‘living will’. It’s a statement you make now, while you are still able to make such decisions, about which treatments you would or would not want to receive in the future in case you are unable to make those decisions at the time. Until now such a statement has not been legally binding, but health professionals have had to take it into account when taking action.

Following the implementation of the Mental Capacity Act, as of 1st October 2007, a person can make a statement (now called an Advance Decision) allowing them to set out particular types of medical treatment they do not want to receive, should they lack the capacity to decide this for themselves in the future. No one can make an Advance Decision to insist on a particular treatment - just to refuse certain treatments. Advance decisions cannot be used to:

· ask for life to be ended;

· force doctors to act against their professional judgement;

· nominate someone to decide on treatment (just to be consulted);

· forbid any treatment that is being given under the Mental Health Act;

· demand specific medical treatment.

Advance Decisions are legally binding and must be followed by doctors and other health professionals, as long as they meet certain conditions, namely:

· You are over 18 years and have the mental capacity to make the decision;

· If they include a statement about refusing life sustaining treatments they must

o Be in writing, and

o Contain a specific statement which says that your Advance Decision applies even if your life is at risk, and

o Be signed by you in front of a witness (or by someone else that you appoint, in your presence, if you are unable to sign), and

o Be signed by the witness in front of you.

An Advance Decision may not be followed if:

· Since making the decision you have acted in a way contrary to the decision;

· You are being treated under the Mental Health Act;

· Medical advancements have changed the basis on which your decision was made;

· The decision is not clear in the present circumstances.

An Advance Decision does not have to be in writing. It can be oral (unless it relates to the refusal of life sustaining treatments – see above). However, it is advisable to put it in writing and make clear the circumstances under which your decision to refuse treatment will be relevant.

When making an Advanced Decision, like many people, you may want to take the opportunity to include an advance statement about any treatment preferences you may have. This will not be legally binding, but it does make people aware of your wishes. It may include:

· Treatment you would be happy to have, and in what circumstances;

· Treatment you would not chose to have, no matter how ill you are;

· Treatment you would prefer not to have, and in what circumstances;

· Someone you would like to be consulted about your treatment at the time a decision needs to be made.

If including an advance statement, bear in mind that new drugs or treatments may be introduced in the future. So you could, for example, state that you would prefer not to receive certain current treatments but would allow for new treatments.

As well as ensuring that your nearest and dearest have a copy of your Advance Decision, it is important that it is included in your medical notes so that in an emergency it is found and acted upon. It is advisable to let your GP have a copy and if you are receiving regular treatment at a hospital, to ensure that it is entered into your medical notes.

Every adult who is ‘of sound mind’ has the right to agree to or refuse treatment. In many cases an Advance Decision will be an appropriate and preferable alternative to a personal welfare Lasting Power of Attorney in achieving this purpose. It is a relatively straightforward document which only becomes effective if you are unable to participate in decisions about your medical care. It is simpler, less expensive and does not have the complication and expense of requiring registration. However, it does have ‘slightly less teeth’ than an LPA which appoints an attorney to make decisions on your behalf (as opposed to being consulted).

If you made a Living Will before 1st October 2007 the changes to the law may undermine the authority of this document. It is important that anyone with such a document take advice regarding its validity.