Advance Decision To Refuse Treatment In The Court Of Protection

Advance Decisions to Refuse Treatment (ADRT) enables a person to make advance decisions in order to maintain control over their medical care. This allows individuals to avoid unwanted treatment, uphold their personal beliefs or values, reduce the burden on loved ones, and ensure their wishes are respected if they lose the capacity to make decisions in the future.

ADRTs are distinct from advance statements, which express preferences but are not legally binding. Valid and applicable ADRTs must be respected by healthcare professionals and take precedence over decisions made in a person’s best interests. A valid ADRT further provides healthcare professionals with protection as they will not be liable if they believe to have followed a valid and applicable ADRT. They can be changed or withdrawn at any time while the person retains mental capacity.

An ADRT is a legally binding document that sets out a person’s wishes with regard to their medical care. The document will typically set out several scenarios that may occur and express the person’s wish, should those circumstances arise, and at the time the person no longer retains the capacity to make the necessary decisions. A binding ADRT must be created in accordance with the Mental Capacity Act 2005.

The Mental Capacity Act 2005 provides that an ADRT will be legally binding and valid if the following criteria is met:

Providing the above criteria is met, an ADRT will be valid. An ADRT may later become invalid if:

The application of an ADRT was recently seen in the Court of Protection in this case. This case revolved around an individual’s ADRT, in which there were concerns raised as to its validity, not only due to its contents but also whether the individual voluntarily made the decisions. The ADRT was contained within a Living Will, and members of the individual’s family believed the ADRT was not signed by the individual or, that it was procured under the influence of the individual’s fiancé.

In considering the case, the Court of Protection commented that the ADRT was valid as it had met the criteria set out in the Mental Capacity Act 2005. Further, the ADRT would apply as the circumstances described within the ADRT reflected the position the individual now faced. This was, however, subject to a later determination as to whether the individual made the Living Will freely, as this was to be determined at a later hearing.

Comment

The case before the Court of Protection highlighted the need for ADRT’s to be made known to family members and medical professionals in a timely manner and before their application arises. This prevents the risk of a dispute, which in this case meant the wishes of the individual, if valid, had not been followed from the outset due to the question of its validity and the delay in making the medical professionals aware of the ADRT.