Bewilderment at the Doctors

Following a change of address, my Mum registered at a new Doctors. She came back with some forms, but was concerned at the part that asked whether she had a Lasting Power of Attorney or any other document confirming what her decisions would be in regards to her medical care should she not have capacity.

Luckily, Mum has me, a qualified solicitor specialising in elderly client law. But I know that not everyone has someone like me in the family, so I thought this blog would be the perfect place to try and give everyone without a “me” in the family, some information should you find yourself as bewildered as my Mum!

What the Doctor’s Surgery was trying to find out was whether Mum had a health and welfare Lasting Power of Attorney (LPA) or an advance directive. These documents confirm whether there are any medical procedures, practices, treatments or drugs etc you would want to say no to or whether you would like to refuse life-sustaining treatment should you be unconscious or no longer have capacity to have a say in the matter.

Every doctor takes their Hippocratic oath and part of that is a promise to do everything they can to keep a person alive, of course with very specific, limited exceptions. As such, where a person is unconscious or lacks capacity to tell the Doctor what their opinion of a medical treatment is, a Doctor, quite rightly, will impose the medical treatment should he think that it is the best course of action for that person’s immediate health.

The problem comes when a person’s opinions or beliefs do not accord with that of the Doctor’s duty to keep you alive and well. So what is the solution?

There are two possible solutions both with different pros and cons which I will briefly touch upon here: –

1. An advance directive – in this document you confirm what medical treatments you would want to reject. The problem with this type of document is that medical science is constantly improving. If a new medical treatment is introduced and you have not updated your advance directive to reject it, then the Doctor will try the new treatment as it is not specifically included within the advance directive in the event that you are unconscious or lack capacity.

2. A Health & Welfare Lasting Power of Attorney – this is a document whereby you give to someone of your choosing (your attorney) power to deal with all of your health and welfare decisions only when you lack capacity. The best way to think about this is to remember all of those decisions you made for your toddler – what they ate, who they played with, where they lived, whether they stayed over at Granddad and Grandma’s etc. Those are all of the decisions that your attorney will make, in your best interests, of course. In addition, and importantly for this article, you can also give your attorney the decision to give or refuse life sustaining treatment. Unlike advance directives it doesn’t matter if new treatments are found as your attorney can choose to reject it, the Doctor hasn’t got to rely on the contents of the document, just the instructions of the attorney.

For the avoidance of doubt, neither the advance directive or the Health and Welfare Lasting Power of Attorney can be used in an assisted suicide circumstance to give protection to the person left behind from criminal proceedings.

If you do have either of the above documents it is very important that you make your Doctor aware of the same and preferably give the Doctor either a copy of the document to be held on your confidential file or tell the about the contents. Until the Doctor has sight of the document and knows that it is legally valid, they will not act upon it and will continue to act in your best interests to keep you alive and well to avoid any criminal or civil repercussions.

I have only briefly touched upon the area of advance directives and Health and Welfare Lasting Powers of Attorney. Each have their own pros and cons and in order to be certain which is best for you, you should obtain legal advice. In doing so, your solicitor will discuss with you your circumstances and be able to advise you which document is best for your situation. If you would like to make an appointment to do this then please contact me on 0116 2628596 or email me samantha.downs@dodds-solicitors.co.uk.

Hopefully, this article has helped someone who was as bewildered as my Mum was. If you would like more information, feel free to call me on the above number or email me as above.