Intended for healthcare professionals

Analysis Ethical debate

Are advance directives legally binding or simply the starting point for discussion on patients’ best interests? Legal advice

BMJ 2009; 339 doi: (Published 26 November 2009) Cite this as: BMJ 2009;339:b4693
  1. Marika Davies, medicolegal adviser
  1. 1Medical Protection Society, London W1G 0PS
  1. stella.zegge{at}

    Following advance directives in emergencies throws up some complicated problems, as Stephen Bonner and colleagues found (doi:10.1136/bmj.b4667). We asked an emergency doctor (doi:10.1136/bmj.b4697), a medical defence adviser, and an ethicist (doi:10.1136/bmj.b4695) what they would do in the circumstances

    In an already challenging clinical situation the team is faced with a serious dilemma: to follow the advance decision refusing life sustaining treatment or to treat the patient against her previously expressed wishes.

    The Mental Capacity Act 2005 enshrined in statute law the right of an adult with capacity to make an advance decision to refuse specific treatment at a point in the future when they lack capacity. Certain criteria must be met to determine if an advance decision is legally binding. It is these that the team must consider without delay.

    Firstly, as this advance decision is …

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