The Growing Importance of Health and Welfare Lasting Power of Attorney’s At Any Age

A 19-year-old patient with an incurable and degenerative disease has recently been deemed by the Courts as lacking capacity to make decisions regarding her ongoing life sustaining treatment as she as she did not believe the doctors when they told her she was dying.

Background

In University Birmingham NHS Foundation Trust v ST and others [2023] the patient’s clinicians who cared for her tried to explain to the patient that due to her progressive disease there was no further treatment they could offer apart from palliative care and as such they tried to include her in making decisions regarding her ongoing care. Despite this, the patient rejected the treatment options offered by her doctors and was unable to accept the opinion of the doctors that her disease would lead to her imminent death, instead believing she would survive long enough to travel and take part in new clinical trials in America.

The case was brought before the Court of Protection to decide whether the patient had capacity to decide her future life sustaining treatment and the judge assessed whether she could make this decision using the guidelines set out in the Mental Capacity Act 2005 (MCA 2005). The Court found that despite not suffering from any psychological or mental disorders she did not have capacity to make the decision as having been presented with the clinical evidence that demonstrated her condition was not curable she continued to wish to try alternative treatment options abroad. As such the Court found her life sustaining treatment should be left to the medical professionals going forward.

Decision

This recent decision has raised questions and comments regarding a person’s right to make decisions about their treatment and whether they may be deemed as lacking capacity should they disagree with the medical professional’s decision.

What is known, however, is the case highlights the importance of a person being able to have a say regarding their own treatment and the growing importance of Lasting Powers of Attorney’s (“LPA”) for Health and Welfare for a person of any age.

The importance of LPAs at any age

It is a common misconception that only people who are getting older with ill health may need an Attorney to act on their behalf.

In actual fact LPAs are important for a person of any age to consider as it is never certain if we may lose mental capacity, or that we may temporarily be unable to manage our health and welfare and as the case demonstrates it could be due to:-

• An illness or degenerative disease
• A road accident
• A short-term or long-term illness
• Diagnosis of dementia or Alzheimer’s

The benefits of Health and Welfare LPAs

As the case highlights Health and Welfare LPAs are extremely important in being able to have your say regarding life sustaining treatment should you need it. But as well as life sustaining treatment your Attorney’s can make decisions in relation to:-

• Your living arrangements
• Preferences on where you do and do not want to live such as care homes
• Who you see and understanding your family relationships and who you enjoy spending time with
• Understanding your allergies or specific dietary requirements as well as knowing your medical history to arrange appointments
• Arranging your hobbies and activities you take part in
• Your hobbies and activities you like to take part in

If this is something you wish to discuss with us or a Lasting Power of Attorney for Financial decisions, please get in touch with us.

An NHS Trust v SA – Lexis®PSL, practical guidance for lawyers (lexisnexis.com)

P lacked capacity to decide medical treatment because of refusal to accept doctors’ information (COP) | Practical Law (thomsonreuters.com)