A Review of Advance Directives

Abstract

The use of an advance directive, when drafted in accordance with the MCA, allows a person the right to refuse specified treatment at a later stage of their life, should they become incapacitated. This means that they, rather than others, can determine what would be in their own best interest. However, even when a person has made an advance directive, their express wishes can be overruled by the court if they have acted in such a way, or there has been a change in circumstances, that is inconsistent with their advance directive. That is, in the event of clear inconsistencies with an advance directive, the court will rule in favour of the preservation of life. Thus, in certain circumstances, it may be justifiable for an advance directive not to be binding. This review aims to evaluate the practices around advance healthcare directives in England and Wales. In particular, it focuses on advance directives for refusal of life-sustaining treatment, and how the courts interpret Section 25(2) (c) MCA in determining when an advance directive is no longer valid or applicable to the specified treatment as a result of inconsistencies subsequent to the document’s drafting. Furthermore, it contends that a mandatory capacity assessment prior to drafting an advance directive could eliminate contentious issues at a later stage.