Advance Decisions / Living Wills
Expert psychiatric evaluation of Advance Decisions and Living Wills to assess compliance with the statutory requirements of the Mental Capacity Act 2005. We provide robust assessments of capacity to refuse future medical treatment, with urgent reports available for time-critical cases.
Expert Type
- Forensic Psychiatrist
- Consultant Psychiatrist
- Consultant Neuropsychologist
- Old Age Psychiatrist
Applicable Law
- Mental Capacity Act 2005
- Mental Health Act 1983 (as amended)
- Human Rights Act 1998
- MCA Code of Practice
- Life-Sustaining Treatment Regulations
When Needed
These assessments are essential when an individual wishes to create a legally binding refusal of specific treatments or when the validity of an existing document is challenged in the Court of Protection.
What Is an Advance Decisions / Living Wills Assessment?
An assessment for Advance Decisions, frequently termed a Living Will, is a clinical evaluation to determine if an individual has the mental capacity to make prospective decisions about refusing medical treatment. This process ensures that the individual understands the nature and effect of their decision, specifically regarding the refusal of life-sustaining interventions, and that they are acting without undue influence.
The assessment follows the statutory framework of the Mental Capacity Act 2005, focusing on whether a person can understand, retain, use or weigh the relevant information. Our experts provide clear, evidence compliant with CPR Part 35 (where applicable) on whether the individual has the functional capacity to form a valid Advance Decision to Refuse Treatment (ADRT).
- Understanding treatment refusal — comprehending what the specific medical treatment is and the implications of refusing it
- Retention of information — the ability to hold the relevant facts long enough to reach a settled decision
- Reasoning and weighting — using and weighing the information as part of the process of making the decision
- Communication of wishes — the ability to clearly communicate the refusal through speech, sign language, or other means
- Specificity of intent — ensuring the decision is clearly intended to apply to the specific circumstances and treatments described
- Decision-specific capacity analysis — assessing whether the individual meets the statutory test for the specific Advance Decision to Refuse Treatment (ADRT).
Assessments are typically conducted by Section 12 approved psychiatrists or specialists in neuropsychiatry who possess the expertise to evaluate complex cognitive profiles. They must distinguish between a voluntary, capacitous choice and a decision driven by cognitive impairment or mental illness.
The resulting expert opinion provides the legal and clinical certainty required by solicitors, healthcare providers, and the Court of Protection. Our reports provide an independent analysis of functional capacity, ensuring the individual’s autonomy is respected while providing protection against legal challenge.
Key Assessment Components
Our assessment evaluates the following areas:
Clinical Interview
A comprehensive psychiatric examination to evaluate the individual’s current mental state and cognitive functioning.
MCA Functional Test
Direct application of the four-stage test to determine if the person can understand, retain, weigh, and communicate their decision.
Document Verification
Review of the written decision to ensure it meets statutory requirements, particularly for life-sustaining treatment refusals.
Medical Record Review
A detailed analysis of past medical history to identify any history of fluctuating capacity or relevant clinical diagnoses.
Undue Influence Check
An evaluation to ensure the decision is made voluntarily and is not the result of external pressure or coercion.
Consistency Analysis
Assessing the long-term consistency of the individual’s views to support the validity of their current instructions.
Conditions That May Affect This Assessment
A range of psychiatric and psychological conditions can affect this assessment. These include:
Many conditions involve fluctuating capacity, making the timing of the assessment critical to establishing a lucid interval.
Assessment Process
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Instruction Received
Briefing from solicitor or healthcare provider detailing the specific treatment refusals under consideration.
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Expert Matched
Selection of a suitably qualified psychiatrist or psychologist with expertise in capacity and the MCA.
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Assessment Conducted
Clinical interview and cognitive testing performed at home, in hospital, or via secure video link.
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Report Delivered
A comprehensive report compliant with CPR Part 35 (where applicable) is provided, offering a clear opinion on the individual’s capacity.
Turnaround Times
| Urgency Level | Timescale |
|---|---|
| Standard Report | 4-6 weeks from assessment |
| Priority Report | 1-2 weeks |
| Urgent Report | 1-4 days |
What’s Included in the Report
All reports are prepared by experienced expert witnesses and comply with CPR Part 35 where applicable for use in the Court of Protection.
Frequently Asked Questions
Need a Advance Decisions / Living Wills Report?
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Related Mental Capacity & Court of Protection Services
Expert assessment of the capacity to make or amend a Will.
Evaluation of capacity to appoint health and finance attorneys.
Expert witness reports for COP proceedings and welfare disputes.
General evaluations under the MCA 2005 for various decisions.
Assessing the capacity to make significant financial gifts.
Provision of experts to act as certificate providers for LPAs.
