FINANCE & LEGAL
person under an LPA, or as a family member concerned with their welfare.
Providers must always ensure that their decisions are made with the individual’s input where possible, in their best interests and in accordance with both legal/regulatory requirements. Failing to strike the right balance where there is no LPA in place can lead to serious risks.
RISKS IF NOT FOLLOWED
Failing to verify LPA’s can lead to several risks. Fundamentally, if a care decision is taken, based on the instructions of an individual who does not hold a valid LPA, this decision may not be in the service user’s best interests and may fall foul of the legislative requirements of the MCA. The decision could therefore be challenged in the Court of Protection.
“Providers must always ensure that their decisions are made with the individual’s input where possible, in their best
interests and in accordance with both legal/regulatory requirements”
Where care is provided, based on the views of an individual purporting to be authorised by an LPA, and that decision is later linked to the circumstances giving rise to a service user’s death, this will fall within the scope of inquest proceedings. If a provider is considered to have made unlawful decisions by a
Coroner, it may result in a Prevention of Future Deaths report and/or a finding of neglect. Following on from this, there is potential for civil liability arising from any care deemed to be negligent/unlawful.
Unlawful decision making, where an LPA is not verified and is subsequently found to not be in place, could amount to a breach of the Regulation 11 of the 2014 Regulations, for which the CQC can criminally prosecute and/or take enforcement action, such as cancellation of registration.
All of the above can lead to significant reputational damage and financial loses.
CONCLUSION
Understanding and following the correct procedures for PoA’s is a fundamental aspect of providing lawful and person-centred care. Care providers must ensure:
• LPA’s are verified. • Clear and accurate documentation is maintained to evidence the LPA has been verified.
• Staff are empowered through training and policies to understand that any purported LPA will not be recognised until it is verified.
• Capacity is assessed and best interests’ decisions are made in accordance with the MCA and consent is obtained in accordance with Regulation 11 of the 2014 Regulations.
By getting this right, care providers can avoid the significant risks associated with improper decision making and ensure the dignity and safety of those in their care.
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