Are Living Wills legally binding in the UK?

A living will is used to clearly state what types of medical treatments you do not want to receive in the future. This is done to give you more control and peace of mind over your future care in case you become unable to make a decision yourself.

A living will is also known as making an advance decision to refuse treatment (ADRT) or an advance directive.

This could be used to refuse life-sustaining treatment, including cardiopulmonary resuscitation (CPR), chemotherapy or ventilation to help with breathing.

The legalities vary across the UK, and below you will find information about what the law says about living wills in England, Wales, Scotland and Northern Ireland.

An advance decision (living will) is legally binding in England and Wales if it meets a set of requirements. Similar rules apply in Northern Ireland.

In Scotland, healthcare teams must consider a person’s wishes about medical decisions outlined in their advance directive but are not bound by law to do so.

What makes a living will legally binding in England and Wales?

In England and Wales, your advance decision will be legally binding provided it meets certain criteria.

If it is legally binding, it overrules decisions made in your best interest by other people and gives legal instructions to your health and social care teams about your treatments.

To be legally binding, your advance decision must comply with the Mental Capacity Act, apply to the situation and be valid.

To comply with the Mental Capacity Act, healthcare professionals will only follow the instructions in your advance decision if you lack the mental capacity to make decisions about your treatment and care at the time they need to be made.

It is only considered valid if:

• You are aged 18 or over and were capable to make, understand and communicate your advance decision when you made it without pressure from anyone else
• You have clearly specified what treatments you want to refuse and in what circumstances
• It is signed by you and a witness if you wish to refuse life-sustaining treatment
• There is no reason to believe you have changed your mind. You may, for example have become pregnant after you wrote your decision or new treatments may have been developed.

Your advance decision will only apply in the specific circumstances you have set out in the document.

You may have stated that you wish to refuse ventilation to help with breathing if you are unable to, but not that you wish to refuse CPR. If this is the case and if in the future you need to be given CPR, your advance decision will not apply.

If your advance decision is valid and applicable, those in charge of your care are required to follow your instructions. They could be taken to court, if they do not follow your instructions.

What does the law say about advance directives in Scotland?

In Scotland, health professionals are not bound by law to follow your decision like they are in England and Wales, but generally do so.

An advance directive provides evidence of a person’s wishes, which doctors and nurses must take into account when they make decisions about their care.

Your advance directive will only be used if you lack the capacity to decide about your care at that time.

Under the Adults with Incapacity Act (Scotland) 2000, people must be assumed to have capacity unless proven otherwise. Healthcare professionals must assess your capacity before making a decision about your care.

A person is deemed to lack capacity to make decision about their care if they cannot:

• Act on decisions
• Make a decision
• Communicate decisions
• Understand decisions
• Remember decisions made

Although you may lack capacity, doctors and other healthcare professionals must consider wishes you have made known in the past and present, such as expressed in your advance directive.

Are advance decisions legally binding in Northern Ireland?

A clear and specific advance decision in Northern Ireland is given legal effect under common law, meaning a healthcare professional must follow it if they know about it.

If, for example, a doctor ignores your advance decision, they could be taken to court.

They are not however legally binding but should be taken into account. Living wills are useful for family members and other loved ones as they can be used to prove how you wish to be cared for and gives you a voice even if you lack capacity to make a decision at the time.

To determine if you lack the capacity to make decisions about your care, common law tests are developed by the courts in legal cases.

These ask if the patient can understand and retain information about the treatment, believe the information and understand the risks and needs involved to come to a conclusion about the treatment.