Note that there are some specific decisions that a doctor cannot make on behalf of a patient using the ‘best interests’ principle. They can be covered by an advance directive covering that subject, or made by someone with lasting power of attorney if the LPA specifically covers life-sustaining decisions, but if neither of those is in place and if one of these decisions comes up then it needs to go to the Court of Protection. Decisions in this category include:
- Withdrawal of nutrition or hydration from a patient in PVS
- TOP or other ethically problematic procedures
- Non-therapeutic sterilisation
- Donation of organs/bone marrow
The MHA and capacity
The Mental Health Act allows treatment to be given for mental health disorders or their physical consequences, even against the wishes of a patient with capacity. (For example, treatment of an overdose.) It does not allow treatment of any physical conditions that are not the consequence of a mental health disorder.
Independent mental capacity advocate service
This is to safeguard people who not only lack capacity but also have no support in the form of family, friends, or a previously-appointed LPA who can advocate for their interests. Advocates are trained for the role and can be appointed when a serious decision comes up concerning a person in that situation. They have the right to assess relevant records and to meet with the person they are representing in private. There will be a local protocol for accessing the service.
The decision of the independent mental capacity advocate is not binding, but doctors should take it into account in making the decision.
There are some decisions for which, if a person without capacity has no support, it is compulsory to appoint an independent mental capacity advocate:
- Serious medical treatment not covered by the Mental Health Act – for example major surgery, withdrawal of artificial nutrition/hydration, or chemotherapy. (The Mental Capacity Act contains a definition.)
- Arranging accommodation in hospital for >28 days or a care home for >8 weeks.
- Deprivation of liberty safeguards assessment
Although not compulsory, it is good practice to appoint an advocate in situations of care reviews or adult protection cases.
Lasting power of attorney
There are two types: property or affairs, and personal welfare. Personal welfare covers matters of accommodation and care as well as health. It is important to check LPA documents to ensure they cover the particular decision to be made. LPAs need to be registered with the Office of the Public Guardian, or else they have no legal power.
Although property or affairs LPAs can come into force prior to the patient losing capacity (unless the LPA document specifies otherwise), this is not the case for personal welfare LPAs, which come into force only when the patient has lost capacity for that particular decision.
If an advance decision is made after an LPA is appointed but at a time while the person still has capacity, the advance decision supersedes the LPA’s decision. However, if the order is the other way round – an advance decision has been made but the person then makes an LPA including the power to make that decision – this invalidates the advance decision.
If there are any concerns that an LPA holder may be abusing their position or the patient, urgent application to the Court of Protection should be made and the Office of the Public Guardian should be contacted. These resources can also be used if there is a dispute with an LPA about treatment which cannot be resolved at a local level.
Court of Protection
This now replaces the High Court for dealing with decision-making issues in patients who lack capacity. It has jurisdiction over matters of health care, personal welfare, property and financial affairs. They can appoint deputies to make future decisions. They have 24-hour emergency cover.
A deputy appointed by the Court of Protection cannot make a decision to refuse life-sustaining treatment, but in other respects has the same powers that an LPA holder would.
If these concern the refusal of treatment necessary for life, they must be written and witnessed. This is not necessary for other advance decisions. A person cannot make an advance decision to refuse basic comfort measures (including the offering of food and water by non-medical means) but can refuse anything else.
Advance decisions are not valid if made when under 18, or at a time when the person lacked capacity (for example, a suicidal person making an advance decision to refuse treatment). They can be invalidated if their actions suggest they changed their mind after making the advance decision. Also, of course, a person can withdraw/amend the decision themselves if they still have capacity. If there is doubt about whether a person had capacity at the time of making the advance decision, an expert second opinion should be sought.
Advances in treatment that the person would not have been aware of at the time the advance decision was made, but would have taken into account, can also make an advance decision inapplicable. (There is an example given in the explanation of the MCA that I linked to below, of a hypothetical patient with HIV who states some years back that he does not want to be given HIV treatment as he does not want to be used as a guinea pig, whose advance decision is considered invalid at the point where HIV treatment is proven to be of help.) In these cases, and in cases where the advance decision does not cover the treatment or circumstances proposed, it should still be treated as an indication of the patient’s wishes.
A doctor who has a conscientious objection to following an advance decision should inform the patient of this and find a doctor who will.
Note that the Court of Protection can rule on whether an advance decision is valid and applicable, but cannot overrule a decision that is judged to be valid and applicable.