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A small guide created to consolidate learning in the area of advance decisions under the Mental Capacity Act 2005 (directives)

Personal autonomy is integral to dignity in mankind. As early as 1914 Justice Cardozo viewed its primacy as the right of: 'every human being of adult years and sound mind... to determine what shall be done with his own body'. An adult with capacity in England and Wales has the absolute right to refuse medical treatment, including life-sustaining treatment if his decision is deemed valid and applicable. This premise extends to advance decisions about one's healthcare in the face of future incompetence. Separate are general advance decisions to more complex advance decisions refusing life-sustaining treatment such as artificial nutrition and hydration (herewith ANH) and ventilation. The law is stricter for creation of the latter. From common law foundation through to statutorily regulated modern day application, the implications of advance refusals, valid or not, have induced widespread debate concerning matters beyond law and into the realms of personhood, personal identity and dignity. This is a guide to how the law is today, and to any errors within the law that may provide room for debate.

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The solution resides within understanding the current law surrounding advance decisions and the differences between this and the Common Law rules which preceded it. The law is not as difficult to understand as it may first seem. There are three main sections within the Mental Capacity Act 2005 (herewith the 'MCA' or 'The 2005 Act') which outline this now (ss 24 and 25 and section 4's best interests test).

History at Common Law

Preceding the birth of the MCA 2005, guidance was given to advance decisions via common law. Confusion surrounding validity, applicability, extent and the role of first person capacity arose from a myriad of judicial dicta. Individual autonomy over future decisions was either restricted or extended but often for the wrong reasons ; Re S is a prime example. The case concerned a perfectly capacitated pregnant woman, a 'born again Christian' who refused to consent to the Caesarean section that would ultimately save the life of her child: The courts authorised the treatment. Mrs S's rights to bodily integrity and personal autonomy were overridden by the sanctity of life presumption.

Later cases began to fill in the lacuna within the law surrounding the extent of first person capacity and duties of the medical profession. Re F saw the birth of the ''best interests test'' in Lord Goff's framework for the medical profession. Medics were advised to holistically consider the patient's needs, weighing these against action in the face of refusal of treatment and to consider their capacity to make such decisions. This approach was followed in Re T (undue influence as overriding advance refusals) by LJ Butler Sloss.

From this, limited guidance existed regarding when a person held capacity to make decisions regarding their treatment until Thorpe J addressed the matter in his three-stage test in Re C :

a) Can the patient understand and retain the specific information?
b) Can he believe it?
c) Can he weight it sufficiently to make a choice?

Re C has been cited most recently in the cases of RT v LT, A Local Authority, and D Borough Council V AB. This test has now been incorporated into section 3 of the MCA. Although the test created a basis for assessing the existence of capacity, the role of personal dignity and autonomy remained unclear. With the later cases of Bland and even more so with Re AK came a new era in the applicability of advance refusals. In Re AK the patient made the advance decision for medical staff to withdraw his ventilator two ...