An elderly patient with multiple co-morbidities was reluctant to engage with medical services and on two occasions had stopped taking all her medication. She had also stopped eating and drinking and refused admission to hospital, although on both occasions she resumed her medication and normal eating patterns within a few days. However, she had drafted an advance decision to refuse treatment when she first stopped taking her medication.
Her GP was concerned as the patient had now developed diabetes and was once again omitting her medication. He did not believe that she lacked capacity at present, although he had not had the opportunity to formally assess her. His concern was that she was at risk of losing consciousness and, therefore, capacity. He was aware that at that point her advance decision may apply and rang the MDU for advice as to whether he would be vulnerable to criticism if he did, or did not, treat the patient.
The medico-legal adviser discussed the situation with the doctor and explained that an adult patient with capacity has the right to consent to or refuse treatment and patients are assumed to have capacity unless it is established otherwise. However, the issue of capacity relates to the specific decision in question at the time that the decision needs to be made. Capacity can vary according to the complexity of the question and a person's capacity can vary over time. Therefore capacity should be assessed on each occasion. It would be prudent to make, and fully document, a thorough assessment of the patient's capacity relating to this specific decision. If necessary, it can also be reassuring to obtain a second opinion from a suitably-qualified colleague.
An advance decision can allow an adult patient who wishes to refuse treatment to ensure that their wishes will be respected in future when they lack capacity. An advance decision can take many forms and does not always have to be in writing. However, if the patient loses capacity, a healthcare professional is expected to ensure that not only does the advance decision exist but that it is valid and applies in the current circumstances.
If the decision is refusal of life-sustaining treatment, it must be in writing, signed and witnessed. It must state clearly that the decision applies even if life is at risk. It must also state what treatment the patient wishes to refuse. A general statement that they do not wish to be treated is insufficient. In this case, the directive did not contain these details.
Healthcare professionals are also expected to try to find out if the person has done anything that clearly goes against their advance decision, has withdrawn the decision, has subsequently created a power of attorney or would have changed their decision if they had further information about the current circumstances. It was noted that the patient had previously acted inconsistently with the directive and that it would be important to ascertain her intentions on this occasion and document them in detail.
In the event, the patient resumed normal diet and medication and the advance decision was not required. However, the doctor took the opportunity to discuss with the patient that in order to ensure that her direction was valid, thus ensuring that her wishes were clear and would be followed, she may like to seek advice to ensure that it was properly drafted.
Dr Lynne Burgess
This guidance was correct at publication . 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.