advance decision

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A legally recognized decision (often described as a living will) regulated by the Mental Capacity Act 2005, in which a mentally capable adult identifies specified treatment (e.g. a blood transfusion) that should not be carried out in the event that he loses capacity. Generally, there is no requirement that the decision be in writing unless it relates to life-saving treatment (in which case it must be in writing and witnessed by a third party). In order to be effective the directive must be valid (e.g. the patient must not have withdrawn it or done anything inconsistent with the decision: HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam), [2003] FLR 408). It must also be applicable to the treatment in question. For this reason advance directives need careful drafting. A medical professional who provides treatment in contravention of an advance directive that he knows to be valid and applicable is potentially committing a tortious or criminal act.

Subjects: Medicine and Health — Law.

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