ARBD Legal Issues - Advance Decision-Making

A guide to the legal arrangements in place to help someone with ARBD who is struggling to manage their own affairs.

Introduction

Because a person with Alcohol-Related Brain Damage (ARBD) may have difficulties thinking things through, making decisions and remembering what they’ve decided, it is sometimes necessary to make arrangements for other people to decide some things on their behalf until they have recovered. There are specific legal arrangements for the things you may have to do when someone with ARBD can’t manage their own affairs.

This fact sheet and the two others that go with it explain those arrangements:

  • Lasting Power of Attorney
  • Use of the Mental Capacity Act 2005, including Deprivation of Liberty Safeguards (DOLS)

Advance Decision-Making

The Mental Capacity Act 2005 specifically allows for people to make an advance decision to refuse treatment. The Act does not however give people the right to demand treatment – only to decline it.

An advance decision enables someone aged 18 or over, while still capable, to refuse specified medical treatment for a time in the future when they may lack capacity to refuse such treatment. The courts have recognised that adults have the right to say in advance that they wish to refuse treatment if they lose capacity in the future, even if this results in their death.

A valid and applicable advance decision overrides decisions which others might want to make in the best interests of the person lacking capacity.

The legal requirements for healthcare professionals are that there must be proof that an advance decision exists, it is valid and it is applicable in the current circumstances.

The Gwent Specialist Substance Misuse Service recommends that the decision be in writing. It must state what treatment is to be re used and the circumstances when the refusal should apply. It will only apply at a time when the person lacks capacity to consent to or refuse the specific treatment.

Put it in writing

It is helpful to include the following:

• Full details, including date of birth and address.

• Name and address of the GP and whether the GP has a copy.

• A statement that the document should be used if the person lacks capacity to make treatment decisions.

• A clear statement of the decision and circumstances in which the decision will apply.

• Date written (or reviewed).

• Signature.

• Witness signature.

The Mental Capacity Act allows for people to cancel an advance decision at any time while they still have capacity to do so. It is important to let people know this.

An advance decision overrules the decision of any welfare Lasting Power of Attorney made before the advance decision. However, a Lasting Power of Attorney made after an advance decision will make the advance decision invalid.

A person may want to carry it or carry a card, bracelet or other indication that they have made an advance decision and explaining where it is kept.

This fact sheet was written by our predecessor organisation Alcohol Concern with the support of Garfield Weston Foundation.

Other legal issues fact sheets in this series:

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