The BBC reported last week that Mr Stowell is suing his late mother's care home in Hull for placing his mother on end of life care without informing her family. At the time the decision was made his mother had dementia so she was not involved in the decision. Mr Stowell alleges that the family were not consulted or advised of the decision. Rose Villa nursing home states that the proper process was followed.
We do not know the full details and therefore cannot comment on the litigation case. However it raises an important question of when it is possible to consent to end of life care.
Under the Mental Capacity Act every adult is presumed to have capacity unless proven otherwise. Capacity is assessed on a case by case basis. Therefore just because someone doesn't have capacity to manage their financial affairs doesn't meant they do not have capacity to make decisions in relation to their health. Just because someone doesn't have capacity to make a life changing decision doesn't mean they don't have capacity to make day to day decisions.
Capacity is also time specific. It is determined at the time the decision needs to be made. This is crucial for someone with fluctuating capacity. Someone may not have capacity to make a decision one day but their capacity could have improved sufficiently for them to make the decision the next day or later in the week. If for example someone has a water infection which is affecting their capacity then if possible any decisions that they need to make should wait until their course of antibiotics has completed and their capacity has improved. If someone is better in the morning than in the afternoon, they should be given the opportunity to make decisions in the morning.
If communication is an issue then the person should be supported to make and communicate that decision by any means. For example it cannot be presumed that a person cannot make a decision just because they are unable to speak. They may be able to communicate their wishes through words, pictures and if necessary sign language. If English is not a first language then consideration should also be given to involving an interpreter to see if the decision can be communicated in their first language.
Therefore when considering placing a patient on end of care, the patient themselves should be given every opportunity to be involved in the decision and for their views to be communicated.
If the patient doesn't have capacity then the care provider must consider whether there is a registered attorney for Health and Welfare in place.
It is important for everyone to make a health and welfare Lasting Power of Attorney (LPA) whilst they have capacity to do so, to ensure that your chosen attorney or attorneys can make decisions for you should you become unable to make your own decisions.
A health and welfare LPA is a separate document to a financial affairs LPA or Enduring Power of Attorney. This LPA specifically covers care and medical decisions. Your attorneys can only act for you under this LPA if you can no longer make your own decisions in relation to your health and welfare.
Within the LPA there are two options regarding life sustaining treatment. Option A gives your attorneys authority to give or refuse consent to life sustaining treatment. If you sign option B then your attorneys do not have the ability to give or refuse consent to life sustaining treatment on your behalf. This is of course a personal decision for each person making a LPA to make. A lot of clients do sign option A to ensure that their chosen attorneys are able to make the decision regarding life sustaining treatment.
When making a decision under the LPA, the attorneys must act in the best interests of the donor (the person who has made the LPA). They cannot let their own views and their own position conflict with their role as an attorneys. Where possible the attorneys must take into account the donor's own views and beliefs and any guidance provided in the LPA itself.
If a patient has a health and welfare LPA and option A has been signed the care provider or the hospital must liaise with the registered attorneys regarding end of life care. If they do not or the hospital or care provider wishes to go against the decision made by the attorney then urgent legal advice should be sought.
Of course sometimes these decisions must be made urgently and the hospital may not have time to consult the registered attorney. In those circumstances they too must act in the best interests of the patient.
If the patient does not have a health and welfare LPA, then the decision rests with the hospital or care provider. However they should liaise with the family and they must act in the patients best interest. Again if the family feel the hospital or care provider is not acting in the patients best interest they should seek immediate legal advice.
Our recommendation is for everyone to make a health and welfare LPA to ensure if and when you have lost capacity, those you trust can made health and welfare decisions on your behalf.
"They should have consulted all family members. The care home would always phone each family member if Mum didn't feel well or had a headache. I always got calls from them. This is why I am so angry," Mr Stowell said.