It is important to consider Advance Care Planning while you have mental capacity and there are a number of ways to do this. Our Community Care Law solicitors answer your questions.
An advance care plan 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 could not make care or medical treatment decisions for yourself. It is sometimes called anticipatory care planning.
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 would particularly want to consider if you were diagnosed with a progressive illness and were at risk of losing mental capacity to decide about your future care.
No, but if your wishes and feelings are recorded in an advance care plan, and shared with your clinicians and family, it would be more likely that the clinicians would follow them.
Advance care planning has been in place in the UK for over ten years. But the Covid-19 pandemic has made the need to consider advance care planning even more important. The public health crisis has resulted in medical practitioners having to make clinically complex decisions in urgent situations. With no advance care plan in place, the clinicians have no record of your wishes and feelings about care and treatment.
The General Medical Council issued a statement at the start of the pandemic in April 2020, emphasising that advance care planning was now more important than ever.
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 treatment. 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.
Yes: at the start of the pandemic in March and April 2020, there were reports of GP practices issuing DNACPR Notices to groups of care home residents and to clinically vulnerable people living in the community. These decisions appeared to be based on the person’s diagnosis or age, and the Notices were issued without any consultation with the person to whom they would be applied. The rationale for this unlawful blanket action was not clear: It may have been an attempt to ration priority for care, manage access to ventilation equipment or to other life sustaining treatment.
Parliament has ordered the Care Quality Commission to undertake an investigation in to the blanket use of DNACPR notices. The full investigation findings are due in early 2021.
Amnesty International’s report “As If Expendable” also touches on the unlawful practice of blanket DNACPR notices
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.
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. It will be valid if you made it when you had mental capacity, it is in writing and is signed by you. If you are using your ADRT to refuse life sustaining treatment, then your signature needs to be witnessed. 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.
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 provide that it is documented in some way – such as a video or audio file.
A Lasting Power of Attorney for Health and Welfare is a formal document appointing someone 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. It can only be used when you lack capacity to decide yourself in relation to your health and welfare.
These are decisions made on your behalf by 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 influence 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.
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