Abstracts: Rob Heywood

Professor Rob Heywood, UEA Law School.

Shaping Our Future Destiny: Legal Observations on Advance Decision-Making - Past, Present and Future

The renewed emphasis on patient autonomy within medical law has brought important legal questions surrounding advance-decision making more sharply into focus. This, in tandem with the right to execute an advance-decision being placed on statutory footing by virtue of sections 24 and 25 of the Mental Capacity Act 2005, has caused judges in the Court of Protection to be confronted with an increasing number of cases in which they have asked to adjudicate on the validity and applicability of an advance-decision. While under the common law there was a tendency from judges to err on the side of caution and to override any purported advance-decision where there was the possibility of preserving life, arguably this attitude ought not to be invoked now with the same amount of ease. This paper begins by providing a historical insight into advance-decision making under the common law. It then updates the discussion by considering how, if indeed at all, judicial attitudes have changed towards advance-decision making in modern times. The paper concludes by providing a forward-looking analysis of some important yet unexplored issues that the Court of Protection may be faced with in the future.