Background

The Mental Capacity Act 2005 (MCA 2005) and its accompanying Code of practice (the Code) make provision in relation to advance decisions. There were a number of cases and judgments that dealt with advance decisions but MCA 2005 is an Attempt to codify all the Common law Rules and bring them within a legislative framework. The relevant sections of MCA 2005 are 24–26 and these should be read alongside Chapter 9 of the Code.

The principle of an advance decision is that it is a statement by a person when they have capacity in relation to decisions of a medical nature that may have to be made when they do not have capacity. Common law has always accepted that an individual has total freedom to determine, in advance, whether or not to undergo medical treatment and any statement to this effect used to be known as a 'living Will' prior to the introduction of MCA 2005. MCA 2005 has put this living Will concept into a statutory context as an advance decision.

An advance decision should not be confused with