Mental Capacity Act Practitioners Forum Writing an Advanced Directive

Objectives By the end of this session participants will know what is meant by an advanced directive By the end of this session participants will know what is meant by an advanced directive Know how to check if an advanced directive is valid Know how to check if an advanced directive is valid Know their responsibilities when an advanced directive exists Know their responsibilities when an advanced directive exists Know how to handle disagreements about advanced directives Know how to handle disagreements about advanced directives Review a method of obtaining a values history Review a method of obtaining a values history

What is an Advanced Directive The courts now recognise that adults have the right to say in advance that they want to refuse treatment if they lose capacity in the future even if this results in their death The courts now recognise that adults have the right to say in advance that they want to refuse treatment if they lose capacity in the future even if this results in their death It has been allowed in common law for years but is now part of statute in the Mental Capacity Act It has been allowed in common law for years but is now part of statute in the Mental Capacity Act You can make one if you are 18 or older and have capacity You can make one if you are 18 or older and have capacity

What is an Advanced Directive You can make your own advanced directive or leave the decision up to a Lasting Power of Attorney You can make your own advanced directive or leave the decision up to a Lasting Power of Attorney You can only direct what you do not want, not want you do want You can only direct what you do not want, not want you do want Directives can be challenged but you need to be sure of your facts Directives can be challenged but you need to be sure of your facts

What should be included? There are no pre set requirements, be careful of pre printed forms as they tend to be American and not valid here There are no pre set requirements, be careful of pre printed forms as they tend to be American and not valid here 1. Must state precisely what treatment is being refused, general desires are not valid 2. Must set out the circumstances when the refusal should apply 3. Can only be used after you lose capacity

What should be included You can use everyday language but must make your wishes clear You can use everyday language but must make your wishes clear It is recommended you get advice from a healthcare professional about specific conditions It is recommended you get advice from a healthcare professional about specific conditions If a professional is consulted they must record that discussion in your notes If a professional is consulted they must record that discussion in your notes It is recommended you get legal advice to ensure your wishes are clearly and accurately expressed It is recommended you get legal advice to ensure your wishes are clearly and accurately expressed

Written Advanced Directives 1. Full details of person making the directive, date of birth, home address, distinguishing features 2. Name and address of GP and whether they have a copy of the directive 3. Statement saying the document should be used once capacity is lost 4. Clear statement of the decision, treatment to be refused and circumstances in which it applies 5. Date of writing or review

Written Advanced Directives 6. Persons signature or signature of someone asked to sign on their behalf and in their presence 7. Signature of person witnessing the signature if the directive includes refusal of life sustaining treatment and their relationship to the individual (it is witness of signature only, not witness of capacity) 8. Statement that you understand that your decision may put your life at risk (also witnessed with a signature) 9. Someone can write it on your behalf 10. Must be transcribed into the notes when professional becomes aware of it

Verbal Advanced Directives If the decision does not include refusal of life sustaining treatment then it can be made verbally If the decision does not include refusal of life sustaining treatment then it can be made verbally 1. Professional must record that decision in the persons record stating – the decision should apply when capacity is lost 2. A clear note of the decision, the treatment being refused and the circumstances in which it should apply 3. Details of who was present when the decision was made, their role when present and whether they were present, took part in it or just aware it exists.

Life Sustaining and Basic Care The advanced decision can refuse those treatments necessary to sustain life including artificial hydration and nutrition The advanced decision can refuse those treatments necessary to sustain life including artificial hydration and nutrition The advanced decision cannot refuse actions necessary for comfort, warmth, shelter, cleanliness, continence, oral offers of fluid and food, dressing malodorous wounds, relief of pain The advanced decision cannot refuse actions necessary for comfort, warmth, shelter, cleanliness, continence, oral offers of fluid and food, dressing malodorous wounds, relief of pain

Reviews and Withdrawals The act does not require a review therefore decisions made a long time ago may still be valid The act does not require a review therefore decisions made a long time ago may still be valid Good practice dictates you should review your directive as treatments and circumstances may change over time Good practice dictates you should review your directive as treatments and circumstances may change over time You can cancel the directive at any time either verbally or in writing, this should also be recorded when a professional becomes aware of this. You can cancel the directive at any time either verbally or in writing, this should also be recorded when a professional becomes aware of this.

Directives, LPA’s and Courts The directive takes precedence over Lasting Powers of Attorney and Court appointed deputies The directive takes precedence over Lasting Powers of Attorney and Court appointed deputies The directive must be followed even if the professional feels it is not in the persons best interests The directive must be followed even if the professional feels it is not in the persons best interestsEXCEPT 1. If you appoint an LPA after the directive 2. A court rules the directive invalid

Validity Issues 1. The person making the directive is responsible for letting people know it exists 2. You must be 18 or over 3. You must have capacity 4. If you have an LPA you must have given them authority to make decisions that are the same as your advanced directive 5. You have not done anything that clearly goes against your advanced decision e.g. been in the same position and accepted the same treatment

Validity Issues 6. The treatment and situation in your directive must apply 7. There have not been any changes in your personal life not anticipated in your directive 8. There have not been any changes in treatment/side effects which was the original reason for your directive

Professionals Responsibilities Despite your own views, you must accept a valid and applicable directive Despite your own views, you must accept a valid and applicable directive You should encourage clients to discuss their wishes You should encourage clients to discuss their wishes If you are told a directive exists you should try and find it, talk to relatives, GP, look in notes, contact clients solicitor. If you are told a directive exists you should try and find it, talk to relatives, GP, look in notes, contact clients solicitor. You should be clear the directive is valid and applicable You should be clear the directive is valid and applicable

Professionals Responsibilities If you doubt its validity you must record your reasons, refer the case to the Court of Protection, give life sustaining treatment whilst awaiting a court decision. If you doubt its validity you must record your reasons, refer the case to the Court of Protection, give life sustaining treatment whilst awaiting a court decision. You can give emergency life sustaining treatment if you are not sure if a directive exists or what is in one. You can give emergency life sustaining treatment if you are not sure if a directive exists or what is in one. Failure to abide by a valid decision meets the requirements for assault and battery Failure to abide by a valid decision meets the requirements for assault and battery If the professional has a conscientious objection, they must hand over the care of client without delay. If the professional has a conscientious objection, they must hand over the care of client without delay.

VALUES HISTORY AND USA 5 WISHES DIRECTIVE 5 wishes is not valid in Great Britain but is a way of looking at describing treatments and circumstances 5 wishes is not valid in Great Britain but is a way of looking at describing treatments and circumstances The Values History is an excellent way of allowing clients to look at what is important in their lives and can be reassuring for relatives. The Values History is an excellent way of allowing clients to look at what is important in their lives and can be reassuring for relatives.

Objectives By the end of this session participants will know what is meant by an advanced directive By the end of this session participants will know what is meant by an advanced directive Know how to check if an advanced directive is valid Know how to check if an advanced directive is valid Know their responsibilities when an advanced directive exists Know their responsibilities when an advanced directive exists Know how to handle disagreements about advanced directives Know how to handle disagreements about advanced directives Review a method of obtaining a values history Review a method of obtaining a values history