Abstracts: Dr Samantha Halliday and Professor Jean McHale

Dr Samantha Halliday (Law, University of Leeds) and Professor Jean McHale (Law, University of Birmingham)

Advance decisions: can you ever refuse basic care?

The inclusion of advance decisions in the Mental Capacity Act 2005 was extremely controversial and throughout its passage through Parliament concerns were raised about the permissible scope of advance decisions. The Act makes it very clear that an advance decision may only refuse, rather than demand, treatment and that an advance decision will not constitute a request for assisted dying, or a valid refusal of treatment provided under the Mental Health Act. However, an exclusion not set out on the face of the Act is found in the Code of Practice stating:

“An advance decision cannot refuse actions that are needed to keep a person comfortable (sometimes called basic or essential care). Examples include warmth, shelter, actions to keep a person clean and the offer of food and water by mouth. Section 5 of the Act allows healthcare professionals to carry out these actions in the best interests of a person who lacks capacity to consent (see chapter 6). An advance decision can refuse artificial nutrition and hydration.”

This paper considers the legislative background to this apparent limitation upon the scope of advance decisions and questions what constitutes basic care and why is it excluded from the ambit of advance decisions. It concludes that the current limitation reflects the state of the debate around end of life decision-making during the 1990s and early 2000s and that the questions of public policy and public interest in advance decision-making and refusals of basic care need to be revisited.