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Mental Capacity Act - transitional provisions for existing advance decisions to refuse life-sustaining treatment

Article 5 of the Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007 relates to advance decisions to refuse life-sustaining treatment.

Prior to the Mental Capacity Act (MCA) coming into force, some people will have made advance decisions that were valid under common law, but which will not comply with the new requirements in the MCA that apply to life-sustaining treatment. Where a person has made an advance decision in accordance with the common law, they will have an expectation that it will be acted upon. However, if that person has lacked the capacity to amend their advance decision since the Act came into force the advance decision may not comply with the new requirements in the Act.

The transitional provision gives effect to such an advance decision even though it does not comply with all the provisions relating to life-sustaining treatment in the MCA (i.e. signed in front of a witness and including a statement that the decision applies even if life is at risk) provided that it meets the particular conditions set out in article 5 of the transitional order.

The particular conditions are that there is a reasonable belief that the advance decision was made before 1 October 2007, a reasonable belief that the person has lacked capacity to amend their advance decision since 1 October 2007 and the advance decision is in writing.

More information on the MCA provisions that relate to advance decisions to refuse treatment can be found in chapter 9 of the MCA Code of Practice.

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• The Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007 (opens new window)
• Information about the Mental Capacity Act 2005 and the Code of Practice