Background Advance decisions to refuse medical treatment (ADRTs) are a key part of Advance Care Planning (ACP), because they imbue patient wishes with legal force. The Mental Capacity Act 2005 (MCA) codified the law on ADRTs to safeguard patient choice in England and Wales. However, in 2014, the Post-Legislative Scrutiny Committee (PLSC) published a report which found a very low level of awareness and uptake of ADRTs in society.

Aim To consider whether the legal factors have impeded the popular utilisation of ADRTs.

Methods Legal analysis.

Results The PLSC found a widespread lack of awareness of law on ADRTs among both professionals and patients (only ~3% of adults in England and Wales have an ADRT). Moreover, the post-MCA case law suggests that it is extremely difficult to predict with certainty as to whether any given ADRT will be upheld in court.

Discussion Although the MCA has clarified the procedure for the creation, interpretation and recognition of ADRTs, significant uncertainty remains in practice. I suggest that this uncertainty is an important reason for the lack popular utilisation of ADRTs and will suggest that adopting additional requirements used in other jurisdictions (e.g. registration and statutory renewal periods) may increase the reliability and popular utilisation of ADRTs.

Conclusion ADRTs are a central pillar of ACP and if we expect them to be utilised they must offer greater certainty to their creators.