Mental Capacity Act 2005 Code of Practice.London: TSO; 2007

HE v A Hospital NHS Trust. 2003;

Mental Incapacity (LC 231).London: TSO; 1995

University Hospitals Birmingham NHSFT v PW. 2021;

Questioning the validity of an advanced decision to refuse treatment

28 October 2021
6 min read
Volume 30 · Issue 19


Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers an NHS Foundation Trust's challenge to the validity of a woman's advance decision to refuse treatment in the Court of Protection


The main aim of the Mental Capacity Act 2005 is to promote valid choice by putting the person at the centre of decision-making and giving effect to that person's wishes (Department for Constitutional Affairs, 2007).

Advance decisions to refuse treatment allow an adult with capacity to set out the treatment they would wish to refuse at some future point when they lacked capacity to make the decision themselves (Mental Capacity Act 2005, section 24). Nurses are protected from liability if they stop or withhold treatment because they reasonably believe a valid and applicable advance decision exists (Mental Capacity Act 2005, section 5).

The Law Commission (1995) defined an advance decision refusing treatment as:

‘A refusal made by a person aged 18 or over with the necessary capacity of any medical, surgical or dental treatment or other procedure and intended to have effect at any subsequent time when he or she may be without capacity to give or refuse consent.’

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