MENTAL HEALTH
Recently, The SFE (Solicitors for the Elderly) and independent think tank Centre for Future Studies revealed how a large proportion of the UK population is leaving medical and care preferences to chance. Yet, when dealing with a mentally incapable patient, it is vital for care providers and health professionals to understand the complex legal issues surrounding the question of who can make decisions on behalf of the patient?
It is predicted that, by 2025, 15.2 million people will be at risk of mental incapacity but only 3% of people in the UK will have health and welfare Lasting Powers of Attorney (LPAs) in place, and the rest of us risk leaving our end of life care decisions to strangers. This is despite 71% wanting a family member to make medical and care decisions on their behalf should they be incapacitated.
GROWING MENTAL CAPACITY CRISIS
With so few preparing for their end of life care, the UK could be facing an incapacity crisis. Without a Will or LPA, a life changing illness or accident can suddenly turn medical and care decisions into legally complex issues whilst the resident’s healthcare wishes are not taken into consideration. In fact, the SFE revealed that 79% of people have never discussed end of life medical and care wishes.
LPAS AND ADVANCE DECISIONS
If a care provider is faced with a patient mentally unable to decide on their healthcare, they should firstly establish whether a valid LPA or Deputyship Order, or an Advance Decision exists.
The Mental Capacity Act 2005 requires that a patient’s wishes and feelings or the wishes of persons appointed to make decisions for them- which will be set out in an LPA - are taken into consideration.
An LPA is a document that a person signs whilst they have mental capacity should they 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 two types of LPAs – one relating to health and welfare (including medical treatment) and the other to property and financial affairs.
Before an LPA can be used, it must be registered by the Office of the Public Guardian (OPG) – look for the OPG’s stamp and reference number and that the document is either the original, or a copy that has been certified by a solicitor. Health professionals looking at LPAs should also check - how many attorneys have been appointed, whether they have been appointed “jointly and severally” (so, any of them are authorised to make decisions) or “jointly” which means they must act together.
Advance decisions (which are statements signed in advance, refusing consent to specified medical interventions) are oſten contained in the Health & Welfare LPAs, but can also be contained in a standalone document (which must be signed and witnessed).
DAY-TO-DAY USES OF LPAS Where life-sustaining treatment is not at stake, the Health
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& Welfare LPA allows the attorney to handle everyday practicalities such as making medical appointments, receiving test results, arranging care services and liaising with other agencies such as social services. Property and Financial Affairs LPAs allow the attorney to manage the patient’s finances, including paying for their care.
NO LPA AND THE COURT OF PROTECTION
Health & Welfare LPAs oſten 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.
Without a Health & Welfare LPA, or an Advance Decision, then the doctor must decide whether it is lawful to give life- sustaining treatment. The Mental Capacity Act gives protection from liability if the doctor reasonably believes it to be in the patient’s best interests. This is judged in accordance with relevant medical guidance and the Code of Practice which accompanies the Mental Capacity Act.
The Code says that all reasonable steps which are in the patient’s best interests, should be taken to prolong life unless it is futile, overly burdensome to the patient, or there is no prospect of recovery. Crucially, this should not be motivated by a desire to end someone’s life out of compassion. If it is unclear whether the proposed treatment is in the patient’s best interest or not, or if there is any disagreement about it, then the Court of Protection is involved, whose main function is to decide what is in the best interests of a patient who lacks capacity.
DEPUTIES
When there is no valid LPA, knowing who to consult with about the patient’s best interests can also become a practical problem for health professionals and carers.
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.
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 so a professional attorney (oſten a specialist solicitor on the COP’s panel) is appointed or an independent mental capacity advocate is consulted. The professional deputy or advocate will of course be knowledgeable about the principles involved, and unbiased, but is unlikely to know the patient personally.
Dealing with the Court of Protection can be time-consuming and expensive, and oſten needs a solicitor to help navigate the complexities of the application process. By checking if residents have an LPA, care providers can minimise the potential issues that can arise should a patient become mentally incapacitated, and ensure to continue to provide care according to the wishes of the resident.
www.gardner-leader.co.uk sfe.legal
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