Talking about your wishes isn’t enough?
Why you need to think about Advance Care Planning.
A recent Court of Protection Case highlighted the importance of Advance Care Planning and why talking about your wishes isn’t enough.
Ideally, everyone would have the foresight to make a Lasting Power of Attorney ( LPA) appointing someone to make decisions for them, should they ever lose the mental capacity to make choices. If an LPA exists, then the person appointed to act as Attorney will have a responsibility to ensure that the best interests of the person lacking mental capacity are protected. But so many people have still not got around to making LPAs – and in such cases if there is a loss of mental capacity then the Court of Protection may assume that responsibility.
The Court of Protection’s role is to protect the interests of anyone who lacks the legal capacity to make their own decisions, and it can apply to both finances and to health and well being.
Under English Law medical treatment for adults who lack mental capacity is covered by the Mental Capacity Act 2005. When a person is admitted to hospital the default position is always to treat the condition unless an advance care plan directs otherwise.
The decision to provide treatment is made in your best interests by a medical team who abide by the core principles of preserving life.
However, those ‘best interests’ may not be the same as the person themselves would have wanted. The medical team will give weight to the views of the family, but the family’s views don’t necessarily determine the outcome. The family will only have this right if they have been appointed your Attorney under a Health and Welfare Lasting Power of Attorney, or you have completed an Advance Decision. Ideally you have also written an Advance Statement which documents your values, beliefs, wishes and feelings about your end of life care.
An Advance Statement alone isn’t binding but it does carry more weight in determining ‘the best interest decision’ than a family member stating this is what you wanted.
So, what might this mean ?
This recent ruling shows how very difficult situations can arise. The Court of Protection were reviewing the case an 80 year old man, and whether prior conversations with his daughter about his wishes were enough to allow life sustaining treatment to be brought to an end.
He suffered from a stroke in 2016 and lost the capacity to speak, after which he refused to eat or drink. He was put on a neo-gastric feeding tube which he repeatedly tried to pull out. His hands were covered in mittens so that he couldn’t pull out the tubes, because without a feeding tube he wasn’t able to receive enough nutrition to sustain life. Subsequently a gastric feeding tube was inserted into his stomach and he was discharged to a nursing home. A while later there were blockages, the tube fell out, and he was readmitted to hospital on a number of times to resolve complications.
He then contracted pneumonia and the medical team thought recovery was unlikely. However, after being treated with antibiotics and other life sustaining medicines, he recovered and the tube was re-inserted. Over this four year period his daughter fought repeatedly for his right to refuse ongoing medical support. She argued that he was a proud independent man, who had worked in the health service for many years and had said “he would not want to be kept alive as a body in a bed”
The Court for Protection ruled that it was against his best interests to set him up on a path to death and that although it was a diminished life it was a life nonetheless.
Vedamurthy Adhyaman, a Geriatrician states ‘We all have the right to choose what we eat, wear, buy, travel, read, watch etc. However, when we lose capacity, our situation changes dramatically forever. Others decide how we should be treated – even when our families know that the decisions being made are not what we would want for ourselves.
The only way to prevent such a situation and avoid unnecessary distress to our families (and to healthcare professionals) is to write a valid Advance Decision clearly stating what treatments we want to refuse and under what conditions. ‘
It’s helpful to know
Where to start with Advance Care Planning?
What is Power of Attorney?
What is as Advance Decision and What is an Advance Statement?
Who needs to know?
What would I like my legacy to be?
Can I have a sustainable funeral?
I find this such a compelling case of the importance of spending a little bit of time now, to put the right documents for your care in place. How do you feel? Start the conversation by getting in touch….
For guidance and support please contact Better Endings at hello@betterendings.co.uk