Lasting Powers of Attorney and health care decisions

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A Lasting Power of Attorney (LPA) is a legal document that enables a person to appoint someone (an Attorney) to help make decisions relating to a person's property and financial affairs in the event that person becomes unable make those decisions themselves due to loss of mental capacity. ​ Whilst many people are familiar with an LPA in relation to...
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A Landmark Judgement for Right to Die Cases?

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A recent judgement questions if legal permission is still required by a court before life-supporting treatment is withdrawn from patients in certain circumstances.

Cases involving applications to the Court by family members or doctors for an order to lead the withdrawal of life sustaining treatment have become increasingly common in recent times. However, a recent judgment means that the number of such cases may decline.

The judgement was made by Mr Justice Peter Jackson in the Court of Protection and is likely to have a bearing on how future ‘right-to-die’ cases are approached in the future. The ruling stated that providing strict medical guidelines have been observed and the family and medical staff are in agreement with the decision to withdraw treatment, there will be no requirement to obtain the consent of the Court.

This particular case involved a lady suffering with Huntingdon’s disease for which there is no cure. Permission was sought to end her treatment in June and was eventually granted by the Court in July - she died shortly afterwards having been in a persistent minimally conscious state for over a year and receiving treatment that both her medical staff and family felt were not in her best interests. The Official Solicitor acts for patients in these circumstances and has argued that all cases of this nature should be referred to the courts and so it is highly likely the decision will be appealed.

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A Lasting Power of Attorney relating to your Health and Welfare can save this distressing situation for you.

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LPAs, Court of Protection & life sustaining treatment

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Court of Protection confirms that a person with capacity can refuse life-sustaining treatment.  Could an LPA have avoided a dispute?
 
Everyone will have to make a decision about their health or care at some point in their lives.

Have you considered however the possibility that your decision may be challenged?

In the recent case of Kings College Hospital NHS Foundation Trust v C and another [2015] the patient found herself at the centre of a disagreement over her decision making capacity when she refused to undertake dialysis, without which she would become progressively unwell and die.

Whilst it was accepted that the patient could understand the information relevant to the decision, retain that information and communicate her decision, the hospital felt that she was then unable to use and give weight to the information provided to her and as a result lacked the required mental capacity to refuse the dialysis.

After considering all the evidence, the Judge found in favour of the patient stating that she did realise the dialysis would keep her alive but the fact that she had decided to give this prognosis no weight in her decision-making did not mean she lacked capacity.

This outcome reaffirms the position under the Mental Capacity Act 2005 that whilst a decision may seem unwise or very strange to others, if you are an adult with mental capacity then you have the legal right to refuse any medical treatment, even if that treatment would keep you alive.

Plan ahead to avoid arguments

Luckily this patient could prove mental capacity but the outcome could have been very different if she could not. Plan ahead to ensure that your wishes are respected if you become too ill to make decisions or speak for yourself by signing a Health & Welfare Lasting Power of Attorney. 

A Health and Welfare Lasting Power of Attorney enables you to choose trusted family members or friends (known as Attorneys) to make decisions on your behalf in relation to both day to day matters concerning your personal wellbeing, and more complex decisions relating to your healthcare and treatment. 

Read more about a Health and Welfare Lasting Power of Attorney here.

More information

If you would like more information on a Health and Welfare Lasting Power of Attorney please contact a member of our Wills, Trusts, Tax and Probate Department who will be happy to discuss this in more detail.  Call 01708 229 444 or email This email address is being protected from spambots. You need JavaScript enabled to view it.


This article was written by Emma Thorpe, an Associate Solicitor in our Wills, Trusts, Tax and Probate Department at Pinney Talfourd Solicitors. This article is only intended to provide a general summary and does not constitute legal advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at March 2016.
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