The recent case of NHS Trust v AF and ANOR [2020] can be used as a prime example of how a Health and Welfare Power of Attorney could have resulted in a different outcome for ‘P’.
P suffered a stroke in mid-2016 and required treatment which would subsequently sustain his life. By the definition under the Mental Capacity Act (MCA) 2005 (S 2(1)), P was deemed to lack capacity and was unable to consent to, or refuse, medical treatment. Under the MCA 2005, where a person is deemed to be incapacitous to make their own health and welfare decisions, any decision must be made in P’s best interests. A best interests decision regarding P’s medical treatment will usually be made by the medical professionals and where possible, relatives will be consulted. Despite this, the final decision is ultimately that of the medical professionals unless a Health and Welfare Power of Attorney is in place in favour of a family member and/or friend.
In this case, P’s daughter expressed her concerns that her father would not want to continue with life sustaining treatment and she felt that to continue his treatment would not be in his best interests. P rejected the treatment entirely and made attempts to pull out his naso-gastric tube on numerous occasions. P’s daughter did not have a Power of Attorney in place and the case subsequently went to court earlier this year where Judge Mostyn decided that it was in the best interests of P for life sustaining treatment to continue despite the concerns raised by P’s daughter.
P was re-admitted to hospital a few months later due to implications with his feeding tube. P’s daughter continued to express the view that it was not in P’s best interests to replace the tube to which the medical professionals disagreed. This resulted in an application being made to the Court of Protection by the NHS Trust to obtain an order to continue with life sustaining treatment, including the reinsertion of P’s feeding tube. Mr Justice Williams made an order in favour of the NHS Trust application.
Despite the order being made, the court adjourned the full hearing to a later date to allow for P’s daughter to obtain legal representation. During this period, P became unwell and was placed on end of life/palliative care. P unexpectedly recovered and was provided with further life sustaining treatments – all of which P’s daughter argued was not in his best interests.
The most recent hearing was held on 30 October 2020 before Mr Justice Poole. The Official Solicitor took the stance that it was in fact in P’s best interests to continue with treatment despite that being contrary to P’s daughters view and also contrary to comments that had been made by P himself (as he was deemed incapacitious to make such a decision regarding his care and treatment).
Mr Justice Poole found in favour of the NHS Trust passing judgement that it was in P’s best interests to continue with life sustaining treatment and it would be the decision of the medical professionals as to whether P was well enough for the feeding tube to be reinserted.
If P had made a Health and Welfare Power of Attorney whilst he had capacity, instructions could have been provided in the application which spoke to his wishes regarding life sustaining treatment. If made in favour of his daughter, she would have been able to make decisions regarding his health and welfare and this would not have been the final decision of the medical professionals by way of a ‘best interests decision’.
For more information call our Court of Protection team to discuss your options on 01484 821 500 or email willsandprobate@ramsdens.co.uk to book a free information session at any of our offices.
BY NATALIE LANG
December 8, 2020
Natalie is a Partner and Solicitors in the Court of Protection department.