Advance decisions: legal update

A recent legal case has highlighted GPs' obligation to ensure that advance decisions recorded in patients' notes are brought to the attention of their treating hospital.

In this case a patient who was in a persistent vegetative state following a fall was kept alive for almost three years, despite having a valid advance decision in her GP record refusing all treatment. When the hospital became aware of the existence of the advance decision and phoned the GP to discuss the details, they were incorrectly told that the decision related to the patient not being resuscitated.

The judge acknowledged that when advance decisions have been drawn up and placed with GP records, there is an 'onerous burden' placed on GPs to ensure wherever possible they are made available to clinicians in hospital. The judge went on to say that it would rarely be sufficient to summarise an advance decision over the phone.

GPs' responsibilities with advance decisions

If you are aware that a patient has made an advance decision, it's important to record this in the patient's notes. It is the responsibility of the person making the decision to tell you about it. Encourage the patient to tell family members or close friends so they can inform healthcare professionals, for example, if the patient is admitted to hospital as an emergency and lacks capacity.

However, the judgment has made it clear that where a GP is aware of an advance decision, they should communicate this with the hospital team. GP records could be flagged so that the existence of an advance decision will be obvious when the notes are accessed.

When a patient is admitted to hospital and lacks capacity, it may not be possible to establish they have an advance decision and clinical management of the patient must be based on what is believed to be in their best interests. Family members may be aware of the existence of an advance decision and may have a copy of this. If no copy is available, the patient's GP should be contacted to see whether they have any record of a decision in the patient's notes.

GPs who are aware a patient has been admitted to hospital and has made an advance decision have an obligation to ensure the treating clinicians are aware of this. Provide a written copy to avoid any misunderstandings.

The treating doctor and their team will decide whether the advance decision is still appropriate and valid and applicable in the circumstances. If there is any dispute, the treating team should consider getting advice from the trust legal services department and the MDU.

What is an advance decision?

Advance decisions enable someone with capacity who is 18 years or over to refuse specific medical treatment for a time in the future when they lack capacity to refuse or consent to that particular treatment. Advance decisions are provided for on a statutory basis by the Mental Capacity Act 2005 but there is no corresponding legal right to demand specific treatment.

Patients may want to discuss advance decisions with their GP, and to know more about conditions they have or may have in the future and what treatment would involve. Healthcare professionals can explain what types of treatment may be life-sustaining and in what circumstances and the implications and consequences of the patient refusing such treatment. However there is no specific requirement that an advance decision must be discussed with a healthcare professional.

Advance decisions can be made verbally or in writing, although if that decision relates to the refusal of life-sustaining treatment, the decision needs to be in writing, signed and witnessed. You can see further advice on advance decisions here.

Patients who have previously made an advance decision may want to review it with their doctor from time to time and update it if necessary. Just because a decision was made a long time ago, it does not automatically render it invalid - but it might mean the treating clinicians question whether or not the decision is still the patient's continuing wish.

This guidance was correct at publication 30/04/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Dr Kathryn Leask

by Dr Kathryn Leask BSc (Hons) MBChB (Hons) LLB MA MRCPCH FFFLM DMedEth MDU medico-legal adviser

Kathryn has been a medico-legal adviser with the MDU since 2007 and is a team leader, trainer and mentor in the medical advisory department. Before joining the MDU, she worked in paediatrics gaining her MRCPCH in 2002 and did her specialty training in clinical genetics. She has an MA in Health Care Ethics and Law, a Bachelor of Law and a Professional Doctorate in Medical Ethics. She is also a fellow of the Faculty of Forensic and Legal Medicine and has previously been an examiner and Deputy Chief Examiner for the faculty exam. Kathryn is currently a member of the faculty's Training and Education Subcommittee.

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