LPAs, Court of Protection & life sustaining treatment

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 mail@pinneytalfourd.co.uk

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.