A recent Supreme Court case highlights the importance of making Health & Welfare Lasting Powers of Attorney (LPAs)
Health & Welfare LPAs often contain valuable guidance about the person’s preferences, for example in relation to medical treatment; and usually include specific authority for the attorney(s) to give or refuse consent to life-sustaining treatment.
If a patient has not made a Health & Welfare LPA, or an Advance Decision, then the doctor must decide whether it is lawful to give life-sustaining treatment. The law protects the doctor from liability if they reasonably believe it to be in the patient’s best interests.
Medical professionals will consult with the patient’s relatives or close friends, if there is no attorney appointed, about the patient’s best interests; and if there are no relatives or friends involved then an independent mental capacity advocate is consulted. The advocate is unlikely to know the patient personally so will not know how the patient felt about the issue.
Case study: An NHS Trust and others v Y and another  UKSC 46
This case focused on the question of whether it is mandatory always to seek a court order before withdrawing clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness. Following a heart attack, Mr Y was in a vegetative state and that there was no prospect of improvement. His wife and children believed that he would not wish to be kept alive in the circumstances.
Although, sadly, Mr Y died before the case was heard by the Supreme Court, the case went ahead because of the importance of the issue. Submissions were made by the BMA, the Care not Killing Alliance and The Intensive Care Society and The Faculty of Intensive Care Medicine and the judgment was published in July 2018.
“The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement.” (Lady Justice Black)
The Supreme Court decided that withdrawal of clinically assisted nutrition and hydration, could proceed without a court order if:
- there is no disagreement between doctors and family about whether this is in the patient’s best interests, and
- the provisions of the MCA 2005 have been followed, and
- relevant medical professional guidance is observed.
But Lady Justice Black emphasised that, if there is any difference of medical opinion, or disagreement within the family (or amongst those with an interest in the patient’s welfare) then a Court application must still be made.
Practical difficulties arise in deciding what is in a patient’s best interest, where the patient has not made a Health & Welfare LPA or an Advance Directive, because their medical treatment preferences may not be known by their family. A further problem arises where there is no LPA because health professionals and carers don’t know whether they are consulting the right people, if the patient never signed a HWLPA naming someone to speak on his behalf?
If there is no valid LPA (see below), the Court of Protection can appoint a deputy to make day-to-day decisions for a person lacking capacity, most commonly relating to property and financial affairs. Occasionally Personal Welfare deputies are appointed, but decisions about life-sustaining treatment may be excluded from the deputy’s powers. Dealing with the Court of Protection can be time-consuming and expensive, and often needs a solicitor to help navigate the complexities of the application process.
Typically a family member applies to become the deputy, but in some cases there is no relative or friend willing and able to perform the role. In that case, a professional attorney (often a specialist solicitor on the COP’s panel) is appointed.
The role of the deputy is similar to that of the attorney, but it is more closely supervised by the COP. Because the patient has already lost capacity before the application is made, they are not usually involved in deciding who is appointed as deputy, and they have no opportunity to express their preferences about actions the deputy should (or shouldn’t) take.
Lasting Powers of Attorney (LPAs).
An LPA is a document that a person signs whilst they have mental capacity, in anticipation that some time in the future, they might have an accident or illness causing them to lose capacity. The LPA names one or more persons (the attorneys) who would be authorised to make decisions on their behalf.
There are 2 types of LPA: one relating to Health & Welfare (including medical treatment) and the other relating to Property & Financial Affairs.
Advance decisions about medical treatment are often contained in the Health & Welfare LPAs, but can also be contained in a standalone document (which must be signed and witnessed).
Mr Y had been in his 50s, in good health and had a sudden heart attack leaving him severely brain damaged. Many people assume that making LPAs is not for them because they are not elderly or ill. But that is not the case, because an accident or illness could strike at any time, and then it may be too late to make an LPA. Without having appointed an attorney, they may end up with people who they wouldn’t have chosen, making life-changing decisions on their behalf; or costly court applications being made.