The Mental Capacity Act (2005: 24) defines an Advance Decision to Refuse Treatment (ADRT) as:
a decision made by a person (“P”), after [they have] reached 18 and when [P] has capacity to do so, that if—
(a)at a later time and in such circumstances as [P] may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for [P], and
(b)at that time [P] lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued.
For this reason, some people refer to ADRT as a form of ‘living will’ – a record of advanced wishes in case of future event(s) where the individual cannot themselves express their own wishes.
How to make an ADRT
Clear specific instructions need to be in writing, signed by P, with a witness present. Please note the role of a witness is an important role, that should not be taken into lightly, it bears weight of responsibility in indicating the documents validity, if in doubt of signing or who could sign, we would encourage due consultation.
There is also the option for a verbal ADRT, however these are much harder to verify if not witnessed and recorded by a professional.
It is recognised that there is no set format for an ADRT, however it is noted in section 9 of the Code of Practice that it is helpful to include the full name, address and date of birth of the individual making the ADRT, alongside distinguishing features in case of unconsciousness (maybe even a photo), as well as details of the date of writing and a clear signature alongside witness information, and the the specific requests for refusal of treatment.
The Code of Practice distinguishes that people can use either ‘medical language or everyday language’ within their ADRT. However, it emphasises that the ADRT must be for specific treatments that are to be refused and cannot be a ‘general desire not to be treated’. It is further helpful to expand upon possible future circumstances when it may or may not come into effect. Please consult as needed with a solicitor and/or health care professional for guidance around making an ADRT if needed.
For the ADRT to come into effect, appropriate persons must be informed; this is the responsibility of the person making the ADRT. For which it is suggested to provide a copy of the ADRT to the GP and ensure treating professionals are aware and to include it with RESPECT forms if these are in place. It would also be of benefit to inform family or friends, to enable them to support your voice in highlighting its presence if needed but is optional. Alternatives may be a card carried, or medical bracelet worn.
If a person is considering forming an ADRT, there is always have the option to speak to a health professional or legal advice to find out more. This may also be of benefit to support the ADRT’s validity as will enable confirmation of capacity on its formation. However, we should emphasise that this is an option, not a necessity.
Important points to know
Please note the following points are taken from both the Legislation and Code of Practice. If further information is required, please do consult your legal team or appropriate professionals within this field;
- An ADRT only comes into effect if P lacks capacity to make a decision for treatment and the treatment referred to in the ADRT is in consideration. At which point health professionals must follow the ADRT unless there is a reasonable belief of its validity or application to the circumstances occurring, at which point they should consult and escalate as appropriate.
- P may can change their ADRT or withdraw their ADRT at any time that they have capacity.
- If P has formed a Lasting Power of Attorney (LPA) for health and welfare after the creation of an ADRT, the ADRT becomes invalid unless the ADRT is updated or the ADRT is specifically included within the LPA.
- If P has done or said anything that may indicate inconsistency with their ADRT, its validity should be reviewed, approaching the Court of Protection as appropriate.
- An ADRT must be formed without coercion or undue influence.
- Healthcare professionals enacting an ADRT with a reasonable belief of its validity and applicability are protected from liability.
- Healthcare professionals who have taken all practical steps to find out if an ADRT is in place and who do not know it exists, or are not satisfied it is valid, are also protected from liability.
Please note that requests for treatment, whether viable or not, do not fall under the remit of an ADRT. It may be that a corresponding document of wishes and preferences is also created. For example, ‘comfort care only if x, y or z occur’ this can also be included within LPA documentation within the relevant sections.
For further information on ADRT, please do refer to the Mental Capacity Act, its Code of Practice and relevant subsequent case law.
We have further been shared a most useful resource of Compassion in Dying who have detailed information on this topic, and provide a form for ADRT’s to help reduce the risk of them being seen as invalid or challenged.
ADRTs and the Court of Protection
If there is any reasonable doubt as to the validity of the ADRT or how it is to be applied in a given circumstance, a decision must be sought from the Court of Protection in a timely manner. During this process, in point 25.5, the Act makes clear that nothing should stop life sustaining treatment or a deterioration in health.
In Re AB (2025) EWCOP 20, Poole J provides an important judgement in one of the rare cases concerning an ADRT. This case is of particular importance for its discussion of ADRTs in practice and for highlighting the importance for the treating professionals to address any possible ADRT in a ‘proper and timely manner’.
In this case, AB had only informed friends of his ADRT. AB sadly experienced a Heart Attack and Brain damage, leading to a Prolonged Disorder of Consciousness requiring intensive interventions to maintain his life. Following this event, his friends only informed professionals four months after his brain injury; there were then further delays before this case was brought before the Court with questions of its validity and applicableness to his present or future treatment. On critical examination of the evidence and case law, Poole J concludes the ADRT is valid and applicable. For any readers interested in this case, this matter is further discussed in:
Additional resources available:
- Age UK (for P)
- Department of Health (for P)
- NHS England (for professionals)
- NICE (for professionals)