Interrogating the limits of precedent autonomy: the anomalous exclusion of basic care from the ambit of advance decisions

Samantha Halliday and Jean V McHale

Medical Law Review, 2025, vol. 33, issue 3, fwaf030.

Abstract: The Mental Capacity Act 2005 enables individuals to make advance decisions to refuse medical treatment once they lose mental capacity. However, scant attention has been given to the limit imposed by the Code of Practice upon the ability of an individual to refuse care, as opposed to treatment in an advance decision. This article examines the different meanings of ‘basic care’. It interrogates the genesis of the exclusion within the Code of Practice. The article examines the problems created by the exclusion, both in definitional terms and in relation to the conflict created with respect for precedent autonomy. It argues that while such an exclusion could be justified on the basis of public policy at the turn of the 21st century, the evolution of greater respect for patient-centred decision-making and respect for human dignity require its re-evaluation. The article challenges the continued relevance of the exception in the light of shifts in public policy and the case law, proposing that the ability to make an advance decision about basic care as well as treatment is an essential element in the toolkit designed to ensure individualized care at the end of life.

Keywords: advance decision; autonomy; basic care; code of practice; human dignity; precedent autonomy (search for similar items in EconPapers)
Date: 2025
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