1.4 Explain the legal position of an advance care plan

This guide will help you answer 1.4 Explain the legal position of an advance care plan.

An advance care plan is a way for a person to record their wishes about future care and treatment. It is usually created when a person still has the capacity to make their own decisions. The aim is to make sure their preferences are known if they lose the ability to express them later.

The legal position of an advance care plan in the UK depends on its content and the form it takes. In most cases, it is not legally binding. However, some parts of an advance care plan can have legal force if they meet specific requirements.

Health and social care workers must understand the difference between advance care plans that are legally binding and those that are not. This affects how the plan is followed in practice.

The Difference Between a General Advance Care Plan and a Legally Binding Document

A general advance care plan sets out a person’s preferences, values and wishes. For example, it may say where they would like to be cared for, or whether they want certain treatments. This type of plan is advisory. It guides professionals but cannot overrule clinical judgement in an emergency.

A plan becomes legally binding only when it meets the criteria for an advance decision to refuse treatment (ADRT) under the Mental Capacity Act 2005. An ADRT is a formal refusal of specific medical treatments in certain circumstances. If valid and applicable, it has the same legal status as decisions made by a person with capacity.

Advance Decision to Refuse Treatment (ADRT)

The ADRT is the only type of advance care plan with full legal force in England and Wales. It is recognised in law by the Mental Capacity Act 2005. For it to be legally binding, it must:

• Be made when the person has mental capacity
• Clearly state which treatments are to be refused
• Set out the circumstances under which the refusal applies
• Be in writing if it relates to life-sustaining treatment
• Be signed and witnessed if it refuses life-sustaining treatment
• Include a clear statement that the decision applies even if life is at risk

Health and social care workers must follow a valid and applicable ADRT. Ignoring it can lead to legal action for assault or battery, as giving unwanted medical treatment can be unlawful.

Mental Capacity Act 2005 and Advance Care Planning

The Mental Capacity Act 2005 is the main law setting out how decisions are made for people who cannot decide for themselves. It covers:

• The right to make advance decisions
• The requirement to respect valid ADRTs
• Best interest decision making when no ADRT exists
• The role of a Lasting Power of Attorney (LPA)

The Act balances a person’s rights with professional responsibility. If no legally binding ADRT exists, professionals must make decisions in the person’s best interest, taking account of any advance care plan as evidence of their wishes.

Lasting Power of Attorney (LPA) and Advance Care Plans

A Lasting Power of Attorney for Health and Welfare allows a person to appoint someone to make health and personal care decisions for them if they lose capacity. This can work alongside an advance care plan.

The LPA has legal authority to make decisions that reflect the person’s wishes. If there is a valid ADRT that conflicts with the LPA’s decision, the ADRT will usually take priority if made before the LPA was registered. Health and social care workers must verify the legal documents before acting.

Best Interest Decisions and the Role of Advance Care Plans

When a person lacks capacity and there is no valid ADRT, the Mental Capacity Act requires professionals to make decisions in the person’s best interest. Advance care plans that are not legally binding still play an important role. They act as evidence of what matters to the person.

Following the plan supports dignity and respect. It can reduce disagreements between family members and care staff. While it cannot override clinical judgement, it should carry significant weight in decision making.

Record Keeping and Evidence

From a legal perspective, keeping accurate and up-to-date records of advance care plans is important. Records should include:

• The date the plan was made or reviewed
• Who was involved in the discussion
• Any changes agreed by the person
• Copies of any ADRT or LPA documents

Having clear records helps defend the organisation and staff if the plan’s content is questioned later. Without proper documentation, it can be harder to prove that the person’s rights were respected.

Limitations in Law

The law does not require a general advance care plan to be followed in every detail. If circumstances change or if the wishes in the plan are no longer practical or safe, professionals can act differently. The duty is to act in the person’s best interest and within clinical responsibilities.

An ADRT only applies if:

• The circumstances match those described in the decision
• The treatment refused is the one being proposed
• The decision is valid and has not been withdrawn or overridden by later legal arrangements

How the Law Protects the Person’s Rights

The combination of advance care planning, ADRTs, and LPAs gives people the chance to have a voice in their care even when they cannot speak for themselves. The law protects these rights by:

• Requiring respect for valid ADRTs
• Giving legal power to attorneys under LPAs
• Promoting best interest decision making based on known wishes
• Allowing decisions to be challenged if they ignore legal documents

By understanding these legal safeguards, workers can protect the person’s autonomy and dignity.

Real Examples in Practice

Example 1:
A person with motor neurone disease makes a written ADRT refusing ventilation if they reach a stage where they cannot breathe without help. The ADRT is signed, witnessed and states that it applies even if life is at risk. The law says this ADRT must be followed, provided the situation matches the conditions described.

Example 2:
A person with dementia has an advance care plan saying they wish to stay at home as long as possible. This is not legally binding but guides professionals and family in making best interest decisions. If they need hospital care, the plan helps staff decide whether discharge home is possible.

Responsibilities of Health and Social Care Workers

Workers must:

• Recognise the difference between advisory plans and legally binding documents
• Check the validity of any ADRT or LPA
• Record any decisions made and the reasons for following or changing a plan
• Involve the person and others important to them in discussions where possible

Failure to follow legal duties can lead to disciplinary action, professional misconduct, or court cases.

Supporting the Person to Make an Advance Care Plan

Staff can support the legal position of plans by:

• Encouraging the person to be clear about their wishes
• Explaining the difference between preferences and legal refusals
• Advising the person to record refusals as ADRTs if they want legal protection
• Suggesting they seek legal advice for LPAs

Good communication during planning helps make sure the document has the intended legal status.

Review of Advance Care Plans

The law expects these documents to be kept up to date. A plan or ADRT made years earlier may no longer apply if the person’s condition, treatment options or personal views have changed. Recording regular reviews helps meet legal and ethical standards.

An ADRT that has not been reviewed in many years could be questioned in court if circumstances suggest the person may have changed their mind.

Summary of Legal Position

• General advance care plans are not binding but guide best interest decisions
• ADRTs, if valid and applicable, are legally binding under the Mental Capacity Act 2005
• LPAs give legal power to chosen individuals to make decisions when capacity is lost
• Records and reviews are important for legal clarity
• Workers must follow the law to protect the person’s rights and their own professional standing

Final Thoughts

Advance care plans are an important part of respectful and person-centred care. The legal position depends on the form and content of the plan. Most advance care plans are a record of preferences and do not create a legal obligation, but they guide best interest decisions and make care more reflective of the person’s values.

Health and social care workers need to recognise when a plan has legal force, such as with a valid ADRT. They also need to give weight to non-binding plans as part of ethical decision making. By keeping clear records, checking documents carefully, and respecting lawful decisions, workers help make sure a person’s voice is heard throughout their care.