Almost 15 years have passed since the Mental Capacity Act 2005 (MCA 2005) was first introduced in England and Wales in April 2007. In the third of three linked articles, Andrew Alonzi provides a reminder for health and social care practitioners about the Mental Capacity Act 2005.
Advance decisions to refuse medical treatment
Introduction
A person must have capacity to make an advance decision to refuse medical treatment and have reached 18 years of age. The decision will specify the circumstances under which a healthcare practitioner might be proposing to carry out a specified treatment but acknowledges that they may lack capacity to consent to that treatment being carried out or continued. The person can decide that, in those circumstances, the proposed treatment is not to be carried out or continued. A valid advance decision has the same legal status as a contemporaneous refusal of treatment.
An advance decision is therefore concerned with a refusal of medical treatment, which is consistent with the fact that a person cannot compel particular treatment.
Requirements
To satisfy statutory requirements, an advance decision must:
exist (although in many cases an advance decision may have been expressed verbally);
be valid; and
be applicable to the circumstances under which it is being considered.
Assuming these are satisfied, an advance decision applies as if the person had made it, and had the capacity to make it, contemporaneously with the treatment being considered or continued.
An advance decision will not be valid if the person who made it has:
since withdrawn their decision and, at the time they did this, had capacity to do so;
made a Health and Welfare Lasting Power of Attorney after the date of their advance decision which has been registered and authorises their Attorney to give or refuse consent to the same treatment to which the advance decision relates; or
done anything which is clearly inconsistent with their advance decision. Interpreting the person’s behaviour after the date they made an advance decision is one area of potential difficulty for NHS Trusts, so it is important that ways are developed to evaluate whether the person’s subsequent behaviour shows an approach that is inconsistent with their advance decision.
An advance decision need not be a formal document, and need only be in the words of the person making it, as long as it is clear what treatment is being refused.
An advance decision:
must state precisely what treatment is to be refused (an expression of a general desire not to be treated is not enough);
may set out the circumstances when the refusal should apply (it is helpful to include as much detail as possible because this will help to guide medical staff); and
will only apply at a time when the patient lacks capacity to consent to, or refuse, the treatment specified.
It is therefore very important for NHS Trusts to examine carefully the scope and circumstances covered by the advance decision. This will no doubt be more difficult to do if the person’s advance decision is expressed verbally (potentially any decision not concerned with life-sustaining treatment), unless this decision is also clearly recorded in their notes.
Another area of potential difficulty involves new circumstances that have arisen, where there are reasonable grounds to believe the person did not anticipate these circumstances and, if they had, this would have affected their decision. The nearer in time the advance advance decision is to the new circumstances, the greater the chance the advance decision is valid.
Life-sustaining treatment
A person may make an advance decision to refuse life-sustaining medical treatment. Of course, the same treatment may or may not be life-satining, depending on the person’s health needs. An advance decision to refuse life-sustaining treatment must:
be in writing;
be signed by the person making it and witnessed; and
contain the words “even if life is at risk”. If these words are contained in a separate document, that document must also be signed and witnessed.
Advance decisions and liability
Healthcare practitioners will be protected from liability if they:
stop or withhold treatment from a person who lacks capacity, if they reasonably believe that a valid, applicable advance decision exists; or
treat a person who lacks capacity if, despite having taken all practical and appropriate steps, they do not know or are not satisfied that a valid and applicable advance decision exists.
It is good practice for all healthcare practitioners to record their decision and the reasons for it.
It is important to remember, however, that in the absence of a valid and applicable advance decision, healthcare practitioners must still treat in accordance with the best interests of a person who lacks capacity to consent.
Health and Welfare Lasting Power of Attorney (HW LPA)
Introduction
A HW LPA is a legal document that allows one person (the Donor) to give authority to another person (the Attorney) to make decisions on their behalf. In this respect, an LPA is distinct from an advance decision to refuse medical treatment discussed above, which is a personal decision.
Creation
A person must be 18 years of age or more to create a HW LPA. It must:
be a written document using a statutory form (these are accessible online);
set out certain information about its nature and effect;
be signed by the the Donor, stating that they want it to apply when they no longer have capacity;
name anyone the Donor wants to be told about the application; and
be signed by the Attorney(s) confirming that they understand their duties (including acting in the Donor’s best interests).
What can an Attorney do?
When it is registered, a HW LPA puts the Attorney in the position of the Donor, meaning they can give or refuse consent to medical treatment that the Donor no longer has the capacity to do, unless the Donor has stated that they do not want the Attorney to make these decisions.
However, an Attorney would not have the right to consent to, or refuse treatment:
if the Donor retains capacity to make the decision in question;
in certain circumstances, if the Donor made an advance decision to refuse this treatment;
if the decision relates to life-sustaining treatment which the HW LPA does not give the Attorney the power to make; or
that may be given compulsorily under the Mental Health Act 1983.
How should an Attorney act?
An Attorney must act in the Donor’s best interests. This means applying the best interests checklist (s. 4 MCA 2005) and consulting with carers, family members and others interested in the Donor’s welfare.
When making a HW LPA, the Donor must decide whether to give the Attorney the power to give or refuse consent to life-sustaining treatment. The Donor must answer this question when completing the LPA form. If the Donor decides not to give their Attorney this power, they are still someone to be consulted as part of the best interests decision-making process, and may hold important information about what is in the Donor’s best interests.
If the Donor appoints more than one Attorney, how may they act?
Two or more Attorneys may be appointed to act:
jointly, meaning that the Attorneys must always act together, must agree decisions and sign any documents together;
jointly and severally, meaning the Attorneys can act together but may also act independently if they wish; or
jointly for some matters and jointly and severally for others, being a combination of the two above. The Donor must state which decisions need to be agreed unanimously.
How do advance decisions relate to a HW LPA?
A registered HW LPA may entitle an Attorney to refuse medical treatment on behalf of the Donor, who has lost capacity to refuse this treatment.
There are three situations to be aware of. First, an Attorney under a registered HW LPA cannot consent to treatment if the Donor made a valid and applicable advance decision to refuse that medical treatment after the date the HW LPA was signed.
Second, a registered HW LPA giving an Attorney the right to give or refuse consent to specific medical treatment made after the advance decision allows that Attorney to choose not to follow the advance decision (mindful always that they must make decisions in the Donor’s best interests).
Finally, an Attorney has no power to consent to or refuse life-sustaining treatment unless the HW LPA document expressly authorises this.
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