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6. Providing Care or Treatment for People who have Planned Ahead

1. Introduction

The MCA has far reaching effects for people who work in health and social care because it extends the ways in which people using services can plan ahead for the time when they may lack capacity.

These are:

  • Lasting Powers of Attorney;
  • advance decisions to refuse treatment;
  • written statements of wishes and feelings.

These can help in deciding what to do when care or treatment is being provided for someone who lacks capacity. When working with people who have capacity, or fluctuating capacity, it may be helpful to explain these options to them for planning ahead for a time when they may lack capacity. Providing care or treatment for people who have planned ahead is a complex area and it is advisable to refer to the MCA Code of Practice for more detailed guidance.

2. Lasting Powers of Attorney

A Lasting Power of Attorney allows people over the age of 18 to formally appoint someone to look after their health and welfare and / or financial and property decisions, if at some time in the future they lack the capacity to make these decisions for themselves. The person making an LPA is called the donor. The power which is given to someone else is called a Lasting Power of Attorney (LPA) and the person appointed will be known as an attorney. The LPA will give the attorney authority to make decisions on behalf of the donor and the attorney will have a duty to act or make decisions in the best interests (principle 4) of the donor.

There are two different types of LPA:

  • a health and welfare LPA – for decisions which need to be made about both health and personal welfare;
  • a property and financial affairs LPA – for decisions which need to be made about financial and property matters.

2.1 Important facts about LPAs

The introduction of the LPA for property and affairs meant that no more Enduring Powers of Attorney (EPA) could be made, but the MCA made transitional provisions for existing EPAs to continue whether they are registered or not.

When a person makes an LPA they must have the capacity to understand the importance of the document and the power they are giving to another person.

Before an LPA can be used it must be registered with the Office of the Public Guardian. This is vital, as without registration an LPA cannot be used.

An LPA for property and financial affairs can be used when the donor still has capacity, unless the donor specifies otherwise.

A health and welfare attorney has no power to consent to, or refuse treatment, at any time or about any matter when the person still has the capacity to make the decision for him or herself.

If a person being provided with care lacks capacity and has created a health and welfare LPA, the attorney is the decision maker on all matters relating to the person’s care and treatment.

Unless the LPA specifies limits to the attorney’s authority, the attorney has the authority to make health and welfare decisions and refuse treatment on the donor’s behalf. If the decision is about life sustaining treatment, the attorney only has the authority to make the decision if the LPA specifies this.

The attorney must make these decisions in the best interests of the person lacking capacity (principle 4). Where disputes arise that cannot be resolved (for example, between the attorney and a doctor) these may have to be referred to the Court of Protection.

Staff who are directly involved in the care or treatment of people who lack capacity should not agree to act as attorneys, other than in exceptional circumstances, for instance if they are also the only close relative of the person.

It is important to read the LPA to understand the extent of the attorney’s power and make a record of it in the client’s notes. Wherever possible a copy of the document should be kept.

2.2 What about existing Receivers and Enduring Powers of Attorney?

If someone was a receiver for an individual who lacks capacity they retained their powers but treated as a deputy appointed by the Court of Protection. The Office of the Public Guardian contacted all existing receivers so that the necessary administrative arrangements could be made.

If someone created an Enduring Power of Attorney (EPA) or is acting on an individual’s behalf under an EPA it will still be valid even it was not registered, although it should have been registered at the OPG once it is suspected that the donor is losing / has lost capacity.

See Martin’s Case Study.

3. Advance Decisions to Refuse Treatment

Sometimes people have clear views about what types of treatment they do not want to have and do not want to consent to. An advance decision allows them to express these views clearly, before they lose capacity. Advance decisions (also known as ‘living wills’) could previously be made under common law; the MCAct put them on a statutory footing. It also explains what is required in law for an Advance Decision to be valid and applicable and introduced safeguards.

An advance decision can be about any treatment, even if the refusal may result in the person’s death and, if it is valid and applicable, it must be followed. An advance decision does not have to be in writing, except where these relate to life sustaining treatment, but it is helpful if it is (see below for requirements).

If a person has made an advance decision to refuse a particular medical treatment, and that advance decision is valid and applicable, then the refusal has the same force as when a person with capacity refuses treatment.

3.1 What are the requirements for advance decisions?

The MCA introduces a number of rules people must follow when making an advance decision. If you are making a decision about treatment for someone who is unable to consent to it, you must be satisfied that the advance decision exists, is valid, and applicable to the particular treatment in question. The following list gives a brief summary of some of the main requirements for advance decisions and staff involved in such decisions should also consult the MCA 2005 Code of Practice.

  • It must be valid. The person must not have withdrawn it, or over-ridden it by making an LPA that relates to the treatment in the advance decision, or acted in a way that is clearly inconsistent with the advance decision.
  • It must be applicable to the treatment in question and clearly refer to the treatment in question (detailed medical terms do not have to be used). It should also explain which circumstances the refusal refers to.
  • It should also be noted that:
    • where people are detained under the Mental Health Act 1983/2007 (and can therefore be treated for mental disorder without their consent) they can also be given such treatment despite having an advance decision to refuse it;
    • people cannot make an advance decision to demand a particular medical treatment, though they may make their wishes known; they can only say what types of treatment they would refuse;
    • people cannot make an advance decision to ask for their life to be ended.

Once staff are satisfied that decisions are valid and applicable, they must abide by them.

3.2 Advance decisions to refuse life sustaining treatment

An advance decision to refuse life sustaining treatment must fulfil the following additional requirements.

  • It must be in writing. This includes decisions that have been written on the person’s behalf, or recorded in their medical notes.
  • It must be signed by the maker in the presence of a witness who must also sign the document. It can also be signed on the maker’s behalf at their direction if he or she cannot sign it for themselves.
  • It must be verified by a specific statement made by the maker, either included in the document or in a separate statement. The statement must say that the advance decision applies to the specified treatment even if life is at risk. Separate statements must also be signed and witnessed.

See Ike’s Case Study.

3.3 Conscientious objection

Staff do not have to act on an advance decision if they object to it on religious or moral grounds. Staff who have religious or moral objections must make these known as soon as possible and arrangements must be made for the management of the patient’s care to be transferred to another health professional.

3.4 Liability of health and social care professionals

If staff are satisfied that an advance decision exists which is valid and applicable, then not to abide by it could lead to a legal claim for damages or a criminal prosecution for assault.

If staff reasonably believe that there is a valid and applicable advance decision they will not be held liable for the consequences of abiding by it and not providing treatment. Details of how these conclusions are arrived at must be clearly recorded.

3.5 Disputes and disagreements about advance decisions

Decisions need to be made about whether or not advance decisions are valid and applicable.

Staff who cannot agree about this should refer to the MCA 2005 Code of Practice, chapter 9.

Disputes and other difficulties can be referred to the Court of Protection by staff, relatives, carers or close friends of patients. Alternatively, mediation can be considered.

3.6 Dealing with advance decisions made before October 2007

People who made advance decisions before the introduction of the Act should be advised to check that the advance decisions they made meet the rules the MCA sets out to ensure that they are valid and applicable.

If people have already lost capacity, their advance decision can still be valid and applicable if:

  • it is in writing;
  • the person providing treatment has a reasonable belief that the advance decision was made before October 2007;
  • the person providing treatment has the reasonable belief that the person making the advance decision has lacked capacity to amend it since October 2007.

3.7 What an advance decision cannot be used for

An advance decision cannot be used to:

  • ask for anything illegal such as euthanasia or help to commit suicide;
  • demand care the healthcare team considers inappropriate in the client’s case;
  • refuse the offer of food and drink by mouth;
  • refuse the use of measures solely designed to maintain comfort such as warmth, shelter and appropriate pain relief;
  • refuse basic nursing care that is essential to comfort such as washing, bathing and mouth care.

4. The Relationship between Advance Decisions and Lasting Powers of Attorney

If an advance decision has been made it will become invalid if the client has later created an LPA giving someone else the power to refuse the medical treatment referred to in the LPA on their behalf. Equally if an advance decision is made after an LPA this will overturn the LPA, as the attorney cannot accept treatment which the client has already made an advance decision against.

5. Statements of Wishes, Feelings, Beliefs and Values

Sometimes people will want to write down, or tell people, about their wishes and preferences about future treatment and care, and explain their feelings or the values that govern how they make decisions. These statements can be about anything, including personal preferences such as having a shower rather than a bath, or wanting to sleep with the light on.

See Khalid’s Case Study.

These statements must be taken into account when assessing what treatment or care is in a person’s best interests. Statements can contain requests for certain types of treatment, which must be considered carefully, especially if they have been written down. Statements must be taken into account when decisions are made about a person’s care or treatment. Final decisions, however, must always be based on assessments of what is in a person’s best interests and professional judgements about what is clinically necessary or appropriate. Staff should keep full records of decisions they have made which differ to the statements of wishes and feelings people have made, and be prepared to justify them if challenged.

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