FAQs: Why is Advance Care Planning Important?

1. What is the purpose of advance care planning?
2. Who can make an advance care plan?
3. Is your advance care plan legally binding?
4. What is a Do Not Attempt Cardiopulmonary Resuscitation Notice?
5. Can a DNACPR Notice be imposed on me because I live in a care home or because I have a learning disability?
6. What is an Advance Decision to Refuse Treatment (ADRT)?
7. Is my Advance Decision to Refuse Treatment legally binding?
8. What is an Advance Statement?
9. What is a Lasting Power of Attorney for Health and Welfare?
10. What is a Best Interest Decision?

What is the purpose of advance care planning?

Advance care planning is an umbrella term covering a range of different steps and actions that you can consider and put in place to give you some control about what happens in the future. It offers the opportunity for you to plan your future care and support now, while you have mental capacity to do so. This is important in case you become so unwell in the future that you  cannot make care or medical treatment decisions for yourself. It is sometimes called anticipatory care planning.

Who can make an advance care plan?

Any person aged over 18 who has mental capacity in relation to decisions about their health, welfare and medical treatment can use the advance care planning processes. You can make an advance care plan at any stage. But this may be something that you might  want to consider if you are diagnosed with a progressive illness, or are at risk of losing mental capacity to decide about your future care ,or if you experience mental health issues which may result in periods where you lack capacity to make important decisions.

Is your advance care plan legally binding?

No, but if your wishes and feelings are recorded in an advance care plan or advance statement, and shared with your clinicians and family, it would be more likely that the clinicians would follow them. An example of an advance statement that your clinician might suggest is a ReSPECT form, a “Recommended Summary Plan for Emergency Care and Treatment”.

What is a Do Not Attempt Cardiopulmonary Resuscitation Notice?

This is a Notice stating that your clinician has decided that an attempt to resuscitate you is unlikely to be unsuccessful. They are also known as DNACPR; DNAR or DNR. The Notice only applies to cardiopulmonary resuscitation treatment and should never be used as a basis to withhold any other type of care or treatment. A DNACPR is a medical treatment decision that can be made by your clinician without your consent or agreement, but your clinician should tell you about it and listen to your views.

If you have mental capacity, you can ask your clinicians to agree a DNACPR Notice but they may not do so.

DNACPR Notices are not legally binding but they may be persuasive to treating clinicians in an emergency situation. It is vital that you understand your rights, including the right to be consulted about such a Notice and the right to request a second opinion.

Can a DNACPR Notice be imposed on me because I live in a care home or because I have a learning disability?

No: any DNACPR Notice must be based on the person’s specific individual health circumstances and not on “group” characteristics such as age or living in a care home. A learning disability, autism or dementia are not reasons to put a DNACPR Notice on someone’s health records. Amnesty International’s report “As If Expendable” addresses the unlawful practice of blanket DNACPR notices

If you are concerned about a DNACPR Notice for a relative or friend who lacks mental capacity, you may want to seek legal advice, as the situation can be complicated.

What is an Advance Decision to Refuse Treatment (ADRT)?

You can use an ADRT to refuse specific treatments in certain stated circumstances, including to refuse life sustaining or life prolonging treatment. You cannot use it to request help to end your life nor to refuse care to keep you warm, safe, clean and hydrated. The documents may also be called an Advance Directive or a Living Will. Your ADRT only comes in to effect when you lose the ability to make your own decisions about treatment.

Is your Advance Decision to Refuse Treatment legally binding?

In England and Wales, the Mental Capacity Act 2005 stipulates that your ADRT will be legally binding on your treating clinicians provided that it was validly made. You can make an ADRT either orally or in writing and it will be legally binding if it was made when you had mental capacity and are an adult (aged 18 or over).

If you are using the ADRT to refuse life-sustaining treatment then to be valid, it will need to be in writing, signed by yourself or another in your presence and by your direction, the signature is made or acknowledged in the presence of a witness, and the witness signs it or acknowledges your signature.

It is also your responsibility to bring the ADRT to the attention of the relevant healthcare professionals, ideally soon after it is signed to avoid subsequent disputes regarding its authenticity. If you have an ADRT and a Lasting Power of Attorney for Health & Welfare, you may need legal advice to ensure that the two documents no not conflict.

What is an Advance Statement?

An Advance Statement is used to record your wishes and preferences in relation to any future care and treatment, in case you are unable to make these known at a future date. It can cover a wide range of care related issues that are important to you, including religious and cultural beliefs, preferences about where and how you are cared for, and simple but important preferences such as how you like to dress and what you like to eat.

An Advance Statement is not legally binding but can be very helpful in assisting your Attorney(s) or the Best Interest decision-maker to know what is important to you. It does not need to be a written statement provided that it is documented in some way – such as a video or audio file.

What is a Lasting Power of Attorney for Health and Welfare?

A Lasting Power of Attorney for Health and Welfare is a formal document appointing one or more people to act as your Attorney to make health and care decisions on your behalf when you are unable to do so. They can be far reaching and cover matters such as where you live and are cared for, as well as your Attorneys being consulted about any life sustaining treatment that you may require.

The LPA document must be registered with the Office of the Public Guardian before it can be used by your Attorney(s). It can only be used when you lack capacity to make decisions for yourself in relation to your health and welfare.

What is a Best Interest Decision?

These are decisions made on your behalf by health and social care professionals and other people involved in your care, including family and friends, when you do not have capacity and the decision in question is not covered by one of the above advance care planning mechanisms. Although your lack of capacity may mean that you are unable to participate in this kind of decision making, your wishes and feelings and the values that mattered to you before you lost capacity should be used to inform the decision about what happens in your life.

If you have provided guidance (in whatever form) it makes it much easier for a Best Interest decision to be made which reflects what you would have chosen for yourself, if you were still able to do so.

For expert advice on Advance Care Planning, contact our Community Care Law Team on 01273 609911, or email info@ms-solicitors.co.uk.