Health and wealth

Tuesday, 01 May 2012

Quality of life is recognised as an important part of a person’s rights and it is a fast-developing area of law. The implementation of the Mental Capacity Act 2005 (the Act) and introduction of lasting powers of attorney have brought a significant extension to the powers available to attorneys and deputies. Such appointments now enable attorneys and deputies to act for the body and healthcare of clients as well as their financial matters. The full extent of these powers is still being explored through the Court of Protection and they are complemented by the deprivation of liberty safeguarding (DOLS) procedures.

Before the Act, attorneys under an enduring power of attorney (EPA) and receivers under a Court of Protection order were granted powers for an individual’s property and financial affairs. Doctors and other health professionals would occasionally seek consultation with persons noted as next of kin when medical discussions were needed, but relations and attorneys had no legal rights or powers over the person’s body.

The Act has introduced lasting powers of attorney (LPAs) to replace the former EPAs. These cover property and financial affairs as well as health and welfare matters. Through these, an individual chooses who they wish to make decisions on their behalf should they be unable to make such decisions at any time. For those incapable of making LPA appointments, an application is made to the Court of Protection for an order appointing a deputy.

The Court of Protection will not grant global authority over an individual: any application must relate to a specific matter

These orders can be made for property and financial affairs, similar to the old-style receiver appointment, but further orders can now be made for an individual’s body. The Court of Protection will not grant a deputy appointment giving global authority over an individual’s body: any application must relate to a specific matter. It must be shown that the proposed action is in the individual’s best interest and that it is the least restrictive of their rights.

Case in point

A recent case, concerning a family whose son, X, had not developed with the expected skills and reactions of a healthy child, has confirmed how far-reaching some of these new rights available to deputies under the Act can be. Now 24, X lives in a specialist care home funded by the NHS Continuing Care procedure. He has been diagnosed with severe learning difficulties, epilepsy, severe autism and challenging behaviour. He is hypersensitive and tactile-defensive, and he has a paracentric inversion of the long arm of chromosome 13. X has almost no communication skills and physical contact can only be made when he is prepared to bear the sensations. Being tactile-defensive, his reaction is to hit out before being touched. There is a history of Crohn’s disease and other medical issues in the family but no current diagnosis of these in X.

X’s health deteriorated and his parents became concerned that he was not getting the help he required. On discussing the family’s history with legal professionals, it became clear that quick action needed to be taken under the Act to get medical treatment for X. And it was essential that the family received general advice to protect their wealth.

The family went through a number of essential estate-planning and asset-protection procedures to ensure financial security in the future. The deterioration in X’s health included suffering acute pains in his stomach, and the family feared he could have Crohn’s disease; obtaining a diagnosis proved impossible, though. The staff at X’s home had, on occasions, used sedation and restraining procedures to calm him when it was feared he may harm himself, but no formal application had been made for such assistance under the DOLS system.

This case has highlighted the ability to use the powers available under the Act to force the healthcare services to take medical action

At the request of X’s parents and carers, his doctor had visited the home on several occasions. Each time, X had refused to be examined. An outpatient’s appointment was made at the local hospital and despite X having two seizures in the waiting room the consultant sent him away saying an examination was impossible. It was clear that healthcare services would only intervene when there was a real belief surgery was needed.

Court of Protection

An application was made to the Court of Protection outlining the problems and seeking urgent assistance for the family to enable X’s father to consent to sedation and restraint where necessary so his son could be examined and treated. The Court of Protection and the official Solicitor who appeared on behalf of X were given copies of the notes taken supporting the doctor’s inability to examine him. A hearing date was arranged immediately.

X’s father was granted a health and welfare deputy order enabling him to make decisions on his son’s behalf about his health and welfare, to include sedation and restraint. The order was made for an initial period of six months with leave to return to the Court if progress was not made in examining and treating X, with consideration given at that time to make the order permanent. In any event, the District Judge requested that, after a four-month period, position statements be filed keeping the Court of Protection and all parties fully appraised on progress. The District Judge advised that if any party felt the level of sedation or restraint needed to examine and treat X crossed the line between helping him and depriving him of his liberty, they should urgently apply for a further specific order. The whole process took five working days from instruction.

The NHS was criticised for not taking action to help X under the DOLS system sooner. It was clear that its internal guidance had not taken account of the full impact of the Act and this case has highlighted the ability to use the powers available under the Act to force the healthcare services to take medical action. Legislation is developing and it is difficult for the medical profession to keep abreast of all issues. Health professionals should be aware that when taking steps or facing family concerns about ‘depriving liberties’ they can ask the families to get the action sanctioned by the Court of Protection. Where possible, clients should discuss issues such as the one outlined above with their doctor and seek specialist legal advice early so that the problems can be identified and help given quickly.

Author block
Ruth Keighley, Mandeep Virdee

Ruth Keighley TEP is a Senior Chartered Legal Executive in the Vulnerable and Elderly Client team at Herrington and Carmichael of Camberley and Wokingham.
Mandeep Virdee is a Solicitor-Advocate in the Dispute Resolution department at Herrington and Carmichael of Camberley and Wokingham.

The content displayed here is subject to our disclaimer. Read more