Section 6 No: 42 Issue: 2 POLICY FOR ADVANCE DIRECTIVES This Policy was formally approved by the Trust: On: 22nd May 2007 Review Date: 22nd May 2009 Signed: T Hostick Position: Nurse Director Owner: The Performance and Assurance Group Issue No: 2 1. Policy on Advance Directives 1.1. Patients may have a “living will” or “advance directive” specifying how they would like to be treated in the case of future incapacity. 1.2. While professionals cannot be required by such directives to provide particular treatment (which might be inappropriate), an advance refusal of treatment which is valid and applicable to subsequent circumstances in which the patient lacks capacity must be followed. 1.3. Advance directives may take two forms: i. They may explicitly refuse particular treatment. ii. Alternatively, they may spell out the kind of care a person would not wish to receive in certain circumstances and the broad spectrum of care the person does not object to receiving. For example, patients may state that in certain circumstances they do not want to receive aggressive treatment, however they may add that they are happy to receive palliative treatment. A patient cannot request a particular treatment, patients may only state the treatment that they do not want. 2. Validity of an advance directive 2.1. If a person makes an advance refusal of certain kinds of treatment, then such a refusal is legally binding if at the time of making the decision the individual was competent (see the Trust’s consent policy in relation to the legal test for capacity) , they understood in broad terms the implications of their decision, and the refusal is applicable to their current situation. 2.2. There is a presumption of capacity and it is for the Trust to demonstrate that the patient lacks capacity, if it is necessary to do so. 2.3. A valid advance directive is binding and should be followed. 2.4. A failure to adhere to a valid advance directive can amount to assault as well as professional conduct consequences. 2.5. A health professional may not override a valid and applicable advance refusal on the grounds of the professional’s personal conscientious objection to such a refusal. 2.6. However, should there be any doubt as to the validity of the advance directive, in cases of emergency, treatment should be administered sufficient to stabilise the patient’s condition whilst advice is sought; wherever possible, healthcare professionals are advised to seek appropriate legal advice. 2.7. If there is doubt about the validity of an advance directive the Trust’s solicitors should be contacted and it may be necessary to seek a ruling from the court. 2.8. Advance directives can be overruled when a person is receiving compulsory treatment under Section 58, 62 or 63, of the Mental Health Act. However, in these circumstances advance directives should still be considered and followed as far as possible. 3. The form of an advance directive 3.1. It is not legally necessary for the advance directive to be made in writing or formally witnessed, although such measures add evidentiary weight to the validity of the directive. 3.2. Where a patient makes a valid advance directive orally, this should be carefully recorded in the patients notes. 3.3. If an advance directive has been discussed by the patient with a clinician, it must be clearly recorded in the patient’s medical notes and referred to if the patient is no longer able to express his/her wishes. 4. In what circumstances should a healthcare professional revert to a patient’s advance directive? 4.1. Where a patient no longer has capacity to make decisions about their healthcare. 4.2. Healthcare professionals are however reminded that an advance directive should only be referred to once the patient no longer has capacity to make decisions; whilst the patient remains competent, consent to treatment should be sought in the usual manner. 4.3. The Trust is currently in the process of reviewing its policy on advance directives in view of Code of Practice for the Mental Capacity Act, which is due out in March 2006, and in anticipation of the Mental Capacity Act coming into force in 2007 which will substantially impact on the way in which healthcare professionals deal with advance directives.
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