Basildon EM Handbook 2018

An advanced decision (‘living will’) allows an adult (over 18 years) with capacity to state how they wish to be treated if they suffer a loss of capacity.  They can refuse treatment.  In order for an advanced decision to be valid the following criteria have to be met:

•Made by the patient when they were an over 18, and had capacity

•Only applies once the patient lacks capacity to consent to or refuse treatment.

•Must be written, signed, and witnessed

•Must acknowledge in the written decision that the refusal will put their life at risk

An advanced decision may be invalid if:

•The decision was withdrawn while the person had capacity.

•After the advance decision was made, an LPA was appointed AND given authority to make the decisions covered by the advanced decision.

•The person has done something that clearly goes against the advanced decision

Lasting Power of Attorney

The Mental Capacity Act allows people over 18 years of age, who have capacity, to appoint a Lasting Power of Attorney (LPA). The person making the LPA is referred to as the ‘donor’. An LPA can be appointed to make decisions on health and personal welfare, and/or property and financial affairs on behalf of the donor should they lose capacity in the future. The LPA is bound by the principles set out in the Mental Capacity Act and must make decisions in the donors best interest. A valid LPA requires a signed certificate completed by an independent third party, which con- firms that the donor understands the scope and purpose of the LPA and was not put under any pressure to make the LPA. The LPA must be registered with the Office of the Public Guardian.  A personal welfare LPA can make healthcare decisions for the donor once they lack capacity and can consent on their behalf to treatment and social care decisions. There are specific situations when the LPA cannot consent to or refuse treatment:

•When the donor has capacity to consent.

•When the donor has made an advanced decision to refuse treatment (unless the LPA was appointed after the advanced decision and the donor gave permission to the LPA to refuse treatment).

•When the decision relates to life-sustaining treatment which has not been authorised in the LPA.

•When the donor is detained under the Mental Health Act.

An LPA does not have the power to demand specific treatments if they are not felt to be necessary or appropriate.  All LPAs are registered with the Office of the Public Guardian, who can confirm whether a patient has a LPA or not.  If the medical team and LPA disagree on the best treatment for the patient, the case can be referred to the Court of Protection. Whilst a decision is reached the patient can be treated to prevent serious deterioration.

 Office of the Public Guardian (OPG) contact details
Email: customerservices@publicguardian.gsi.gov.uk
Telephone: 0300 456 0300
Fax: 0870 739 5780
9am to 5pm Mon-Fri

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