Personal Law

An ‘advance statement’ – what it is and why you might want to make one

Earlier this month, the Mental Health Foundation (MHF) identified the need for greater use of advance statements in its review on mental health services in Scotland, echoing Colin McKay’s (Chief Executive of the Mental Welfare Commission) recent call for wider use of advance statements in Scotland. Coming from two leading voices in the sector, this is something that needs to be taken seriously, but what is an advance statement, and how can it help?

What is an advance statement?

An advance statement allows individuals who have a mental disorder or illness (including dementia, a learning disability or a personality disorder) to influence how they would like to be treated if, at a later date, they can no longer make decisions for themselves.

They allow doctors, healthcare professionals and a tribunal to consider the person’s wishes and treat them as they would want to be treated. The individual’s wishes must also be taken into account by staff members who are involved in providing the person’s care and treatment, though it is not binding and can be superseded.

What does an advance statement look like?

It is a written document which must be signed by the person making the statement and witnessed by an individual from the list of ‘prescribed persons’ which includes doctors, registered nurses, occupational therapists, social workers, persons employed in the provision of (or in managing the provision of) a care service, and solicitors.

In relation to those ‘persons employed in the provision of a care service’, it is understood that this means managers or senior managers of such services, but not staff members.

What should an advance statement usually include?

Only medical treatment over which the individual would normally be offered some choice should be included. For example, whether they are treated in hospital or in the community, what medications and other forms of treatment requiring consent they will receive, and what other therapeutic interventions they will receive.

It is not possible to demand particular treatments if these are not normally available, and in the case of treatment with alternative medicines or similar substances, are not authorised for prescription within the NHS.

Who can make an advance statement?

Anyone who has experienced mental health difficulties can make an advance statement. A person does not need to have been in hospital or have been forced to accept treatment, and this includes young people under the age of 16.

To make an advance statement, capacity to understand what a person is including in the statement and the effect it might have on their future treatment is needed, and being diagnosed as ‘mentally ill’ does not mean that a person is unable to do this.

Who should you involve?

Decisions about a person’s future care should be discussed with their healthcare team, as well as their mental health officer and perhaps their carer, named person and independent advocate. If a statement is made, it is a good idea to give a copy of to all those involved with the person’s care, especially their GP or consultant.

In short

An advance statement is a simple and useful tool for anyone who has experienced mental health difficulties to set out clearly their wishes for their preferred medical care and treatment in the future. This will provide key guidance for those involved in providing such care and treatment, and valuable peace of mind for the individual concerned. As Colin McKay and the MHF have identified, this opportunity to capture such wishes should not be missed.

If you have any queries about advance statements please get in touch with Brodies LLP’s care sector team.

Lindsay MacEwen

Associate at Brodies LLP
Lindsay is an Associate with a broad range of experience in the private client field. She advises clients on a wide spectrum of personal matters including the preparation of wills and powers of attorney, executry administration, trusts, family business planning and private client aspects of corporate related work.
Lindsay MacEwen