By Any Other Name: the withdrawal of an Advance Decision.
Apologies for the fact that I'm going to assume that people interested enough to read this piece, already know what an Advance Decision as defined by the Mental Capacity Act (MCA) is.
A few years ago, Mr Justice Poole stated in a ruling, that he believes section 25(2(c) of the MCA applies even if a person does not have the [mental] capacity to create an Advance Decision. The usual way that a capacitous person would retract an Advance Decision, would be by means of section 25(2)(a) of the MCA, which says that an Advance Decision is not valid if:
the person has withdrawn the decision when he had capacity to do so.
The clearest way to think about this, is that as soon as an Advance Decision has been validly created it exists, and as soon as an Advance Decision has been withdrawn it no longer exists.
Normally a capacitous person would withdraw [or retract] his/her Advance Decision, by saying or writing `I withdraw my Advance Decision'. As soon as you do that, the Advance Decision no longer exists.
Now, section 25(2)(c) of the MCA, says that an Advance Decision is not valid if:
the person has done anything else clearly inconsistent with the Advance decision remaining his fixed decision.
Surely if a person who is deemed incapacitous says 'I withdraw my Advance Decision' then while the person ISN'T withdrawing the Advance Decision (section 25(2)(a) does not apply because of the person's incapacity), section 25(2)(c) would cause the Advance Decision to become invalid if we apply the ruling of Mr Justice Poole.
So, whatever the mental capacity of a person, if the person says 'I withdraw my Advance Decision' then the Advance Decision becomes invalid, or to express that differently the Advance Decision no longer exists.
I was surprised by Mr Justice Poole's ruling, because I had always considered that 25(2)(c) only applied while the person was capacitous, and covered 'informal retractions'. For example, if a person held up a written Advance Decision and announced 'This is my Advance Decision' and then, WITHOUT SAYING that he was withdrawing his Advance Decision, he tore it into shreds and dropped the pieces in a bin.
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By Any Other Name
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It is really important to consider and uphold people's advance decisionsas this allows them to make decisions about the future of their care. However, I do feel it is important to also take into consideration a person's current circumstances and situation when the decision needs to be affected.
Building on my previous post, I may as well make another point about section 25(2) of the Mental Capacity Act. It gives three reasons why a previously valid Advance Decision can become invalid [which, as I’ve previously pointed out, can be expressed as ‘… reasons why an Advance Decision which did exist, ceased to exist].
It follows, that when anyone – including a judge – is considering whether an Advance Decision has been rendered invalid by one of the reasons listed in section 25(2), that the question to be answered can be expressed in two parts:
WHEN DID the Advance Decision become invalid,
and
WHAT CAUSED the Advance Decision to become invalid.
This is NOT like Best Interests: when making a best-interests determination, you are working out what is the best course of action for the future, so obviously you consider everything relevant which you know about the past [right up to the now]. But the person deciding if an Advance Decision BECAME INVALID IN THE PAST, is NOT him/herself making the Advance Decision invalid – it is not like Best Interests, and obviously if you believe that something happened two months ago which made the Advance Decision invalid, then nothing which has happened since then matters (an Advance Decision either exists or it doesn’t – it cannot cease to exist two months ago, and then somehow ‘spring back into existence’).
Hi Melanie,
You raise a very complicated issue, but I think it is about the applicability of an Advance Decision, not about its validity. I'll post a separate thread, which will [I think] be a more suitable place to discuss the issue/s your post raises.
Hi again Melanie, I've just wasted about 30 minutes typing the other piece, and it didn't post because DiC logged me out while I was typing!
I'll pre-type something and post it next week, because I don't have the time to do it all again today.