Does the Statutory Regulation of Advance Decision-Making Provide Adequate Respect for Patient Autonomy?

Abstract

This paper considers advance decision-making in the context of healthcare. The common law recognition of advance decisions is contrasted with new statutory provision. This paper will examine the Mental Capacity Act 2005 framework for advance decisions and lasting powers of attorney. The ‚best interests’ test and substituted judgment as criteria for proxy decision-making are compared by application to a case example. The paper examines the statutory safeguards in respect of refusals of ‚life-sustaining treatment’ and postulates that these safeguards may render respect for autonomous advance decision-making difficult to achieve in practice.