Anthony Gold

Get in touch

020 7940 4060

  • People
  • Insights
  • What to Expect
  • Contact Us
Anthony Gold
  • Services
    • Housing And Property Disputes
      • Property Disputes
      • Leasehold Services
      • Services For Commercial Landlords, Tenants And Agents
      • Services For Residential Landlords And Agents
      • Housing And Tenancy Issues
      • Judicial Review
    • Injury And Medical Claims
      • Life Changing Injuries
      • Medical Claims
      • Personal Injury
      • Child Abuse
    • Family And Relationships
      • Starting Relationships
      • Ending Relationships
      • After Relationships End
      • Useful Contacts
      • Religious & Cultural Issues
      • Family Law FAQs
      • Family Dispute Resolution
      • Modern Families And Surrogacy Arrangements
    • Conveyancing, Property & Business Services
      • Business Agreements
      • Business Disagreements
      • Commercial Property
      • Commercial Property Disputes
      • Leasehold Services
      • Residential Property
    • Wills, Estates & Court Of Protection
      • Wills, Trusts And Estates
      • Claims Against Trusts And Estates
      • Capacity And Court Of Protection
    • Dispute Resolution & Employment Law
      • Personal Claims
      • Professional Negligence
      • Business Disagreements
      • Claims Against Trusts And Estates
      • Employment
    • People
    • Insights
    • What to Expect
    • Contact Us
  • Get in touch

    020 7940 4060

  • Housing and Property Disputes
  • Injury and Medical Claims
  • Family and Relationships
  • Conveyancing, Property & Business Services
  • Wills, Estates & Court of Protection
  • Dispute Resolution & Employment Law
  • Property disputes
  • Ownership disputes and shares in property
  • Challenging the decisions of councils and public bodies
  • Rights of way, boundaries, covenants and easements
  • Party wall disputes
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Services for commercial landlords, tenants and agents
  • Breach of covenant
  • Forfeiture and recovery of possession
  • Dilapidations and failing to repair
  • Lease renewals
  • Services for residential landlords and agents
  • Regulatory issues
  • Repossession
  • Agents (including letting agreements)
  • Housing and tenancy issues
  • Repairs
  • Repossession and eviction
  • Rehousing and homelessness
  • Judicial review
  • Life changing injuries
  • Brain injury
  • Spinal cord injury
  • Amputation
  • Psychiatric injury
  • Fatal injuries and inquests
  • Medical claims
  • Surgical claims
  • Non-Surgical Claims
  • Birth injury
  • Child health and paediatrics
  • GP and primary care treatment
  • Private healthcare
  • Personal injury
  • Road traffic accidents
  • Accidents abroad
  • Accidents at work
  • Faulty products
  • Public liability and other accidents
  • Child abuse
  • Child abuse
  • Starting relationships
  • Pre nuptial agreements
  • Pre civil partnership and same sex relationship agreements
  • Cohabitation and living together agreements
  • Property ownership agreements
  • Ending relationships
  • Divorce and separation
  • Ending a civil partnership
  • Ending cohabitation
  • Agreeing child arrangements
  • Agreeing finance and assets
  • International arrangements
  • After relationships end
  • Abduction and leave to remove children
  • Changing and challenging parenting agreements
  • Changing and challenging financial agreements
  • Grandparents’ rights
  • Useful Contacts
  • Financial planners
  • Referral to Pension Actuaries and Pension on Divorce Experts (PODEs)
  • Tax Specialists
  • Financial Neutrals
  • Counselling
  • Conveyancing
  • Wills
  • Religious & cultural issues
  • Jewish family law
  • Islamic family law
  • Family Law FAQs
  • Children FAQs
  • Cohabitation Agreement FAQs
  • No-Fault Divorce and Separation FAQs
  • Financial Issues FAQs
  • Pre-Marital Contracts FAQs
  • Family Dispute Resolution
  • Roundtable Meetings
  • One Solicitor Solution
  • Mediation
  • Collaborative Practice
  • Arbitration
  • Second Opinions
  • Private FDR’s
  • Early Neutral Evaluation (‘ENE’)
  • Modern Families and Surrogacy Arrangements
  • Domestic Surrogacy
  • International Surrogacy
  • Business agreements
  • Business advice
  • Employment
  • Mergers and acquisitions
  • Supplier contracts
  • Business disagreements
  • Commercial property
  • Commercial Sale and Purchases
  • Commercial loans and mortgages
  • Property Investment: plot developers & plot buyers
  • Auction: sales and purchases
  • Commercial advice for landlords and tenants
  • Planning advice
  • Mortgage debentures and securities
  • Commercial property disputes
  • Breach of covenant
  • Dilapidations and failing to repair
  • Forfeiture and recovery of possession
  • Lease renewals
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Residential property
  • Residential Sale and Purchases
  • Property Investment: plot developers & plot buyers
  • Remortgages
  • Auction: sales and purchases
  • Ownership matters and transfers
  • Wills, trusts and estates
  • Making a will
  • Applying for probate
  • Distributing the estate
  • Arranging lasting power of attorney
  • Trust advice
  • Tax planning and advice
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Capacity and court of protection
  • Appointing a deputy
  • Removing a deputy
  • Arranging lasting power of attorney
  • Gifts and legacies
  • Managing assets under a deputyship
  • Care issues
  • Removing lasting and enduring power of attorney
  • Special educational needs
  • Capacity and court of protection
  • Personal claims
  • Debt recovery
  • Ownership disputes and shares in property
  • Civil and commercial mediation
  • Building disputes
  • Professional negligence
  • Professional Negligence
  • Property Fraud
  • Investment Fraud
  • Business disagreements
  • Building disputes
  • Civil and commercial mediation
  • Claims against directors
  • Contract disputes
  • Debt recovery
  • Directors personal liabilities
  • Employment
  • Professional negligence
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Employment
  • Employment
  • Unfair or Wrongful Dismissal
  • Settlement Agreements
Anthony Gold > Blog > Advance Decision Making and its Validity

Ffion Jones

ffion.jones@anthonygold.co.uk

Share
  • December 15, 2021
  • Blog
  • By  Ffion Jones 
  • 0 comments

Advance Decision Making and its Validity


In the recent case of Re PW (Jehovah’s Witness: Validity of Advance Decisions) [2021] EWCOP 52, the court considered whether PW had capacity to make a decision regarding a blood transfusion and whether an advance decision, made by PW in 2001, was valid under the Mental Capacity Act 2005 (“MCA 2005”). Further, if the court were to find that the advance decision was invalid, it would be for the court to determine whether it would be in PW’s best interest to receive the treatment.

PW is 80 years of age and suffers from Alzheimer’s Disease. PW has been a Jehovah’s Witness for most of her adult life. As a result of an ulcerated gastric tumour, PW suffered from internal bleeding which caused severe anaemia. PW was in a life-threatening position. A blood transfusion would reduce the immediate risk to PW and allow for further investigation of the best possible treatment for the tumour. Given PW’s general condition, it was likely that she would survive any treatment and live for another five to ten years.

An adult with capacity can refuse a blood transfusion, despite any fatal consequences, and this decision would need to be respected. Section 1(4) MCA 2005 states that people have capacity, even though they may make an ‘unwise’ decision, such as one contrary to medical advice.

In PW’s case, the court deemed that she did not have capacity to refuse or consent to a blood transfusion. It was therefore necessary for the court to consider section 26 MCA 2005 which deals with the effect of advance decision on those carrying out or continuing treatment. If an individual has previously made an advance decision which meets the requirements of the Act, and that advance decision is applicable to the treatment and remains valid; then the advance decision remains effective. In PW’s situation, the court deemed that her advance decision made in 2001, to refuse blood or blood products even if her life is in danger, met the necessary requirements of a valid advance decision.

However, under section 25(2) MCA 2005, an advance decision is not valid if the person who originally made it, has withdrawn it at a time when they had capacity to do.  This includes the creation of a Lasting Power of Attorney (“LPA”) which gives authority to the donnee to give or refuse consent to the treatment which the advance decision relates to; or has done anything else clearly inconsistent to the advance decision remaining in place.

The court focused its attention on section 25(2)(c) MCA 2005 as it believed that there was evidence to demonstrate that PW had done something ‘inconsistent with the advance decision remaining her fixed decision.’  The court noted that PW hadn’t mentioned the advance decision to her family, or the clinicians treating her. PW had subsequently, since creating her advance decision, put in place a Health and Welfare LPA appointing her children as attorneys. The LPA gave PW’s children the authority to make all health and welfare decisions relating to PW apart from the consent to life sustaining treatment. However, although the authority to make decisions concerning life sustaining treatment was not in place, it was noted that blood transfusions or blood products do not necessarily need to be used as treatments to sustain life and the advance decision related to the use of allogenic blood and blood components for any purpose. Given this, the court deemed the granting of the LPA as inconsistent with the advance decision PW previously had made.

Further, the court noted that at the time PW signed her LPA, she told her children that she did want to be resuscitated, if necessary, with no reference to her advance decision or refusal to receiving a blood transfusion. PW also wanted her ‘Do Not Resuscitate’ notice to be removed from her medical records.

It was noted that more recently, PW mentioned contradictory views (whilst lacking capacity as a result of Alzheimer’s Disease) about receiving a blood transfusion. It was noted that on the 17 September 2021, PW told a doctor that she would have a blood transfusion if it was to save her life, but she stated that the blood should be ‘free from diseases.’

Given the above, the court concluded that PW lacks capacity to refuse or consent to a blood transfusion and that her advance decision is not valid. Subsequently, following the application of section 4 MCA 2005 and the Code of Practice, it is in PW’s best interest to receive the blood transfusion.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Ffion Jones

ffion.jones@anthonygold.co.uk

Get in touch

Call, email or use a contact form – whichever suits you. We’ll let you know the best person to help you get started.

Call or Email

020 7940 4060

mail@anthonygold.co.uk

No comments

Add your comment

We need your name and email address to make sure you’re a real person. We won’t share your email address with anyone else or send you spam. Please complete fields marked with *.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

*

code

Related Services

  • Removing lasting and enduring power of attorney

  • Removing a deputy

  • Managing assets under a deputyship

  • Gifts and legacies

  • Appointing a deputy

  • Arranging lasting power of attorney

  • Care issues

About the author

  • Ffion Jones

Meet the team

  • Capacity and court of protection

Contact Us

Request a Call Back

About Us

  • Accessibility
  • Compliance
  • Responsible Business
  • Equality & Diversity
  • History
  • Our Beliefs
  • List of LLP members

Careers

  • Trainee Solicitors
  • Vacancies

Social Media

  • Follow us on Twitter
  • Follow us on LinkedIn
  • Follow us on Instagram
  • View our YouTube channel

Online Payments

  • Payment page through Worldpay

Accredited by

Lexel Parctice
76000Award

Copyright © Anthony Gold Solicitors LLP. All rights reserved. Anthony Gold Solicitors LLP is a limited liability partnership registered in England and Wales with registered number OC433560 and is authorised and regulated by the by the Solicitors Regulation Authority with registration Number 810601