Medical treatment and end of life in your LPA

Your health and welfare LPA can tell your attorneys what medical treatment you would and would not want. That includes your wishes at the end of life. But your attorneys can only decide about treatment that keeps you alive if your LPA expressly gives them that power. These choices are personal and can be hard to think about. Writing them down spares the people you love from guessing.

This guide is one of a series on the preferences and instructions our LPAs offer.

Would you like generic medicines?

What it does. This preference asks that you are prescribed generic medicines where they are available. A generic medicine has the same active ingredient as a branded one but is sold under its chemical name.

Why it helps.

• It answers a small question in advance. Your attorneys will not need to wonder whether you would mind.
• It is the official example. The government’s own guide uses almost this exact wish as an example preference.
• It leaves room for judgement. If a doctor says the branded version is better for you, your attorneys can still agree to it.

What if you have a condition you would not want treated?

What it does. You name a condition. If you have it, you would like your treatment limited to palliative care. That means care aimed at comfort and freedom from pain, rather than cure. The preference applies even if your life is at risk.

Why it helps.

• It is specific to you. You choose the condition, perhaps one you have seen a relative live with.
• It puts comfort first. It tells your attorneys and doctors what matters most to you.
• It lifts a burden. Your family will know the decision reflects your wishes, not theirs.

Can you say no to treatment that would keep you alive?

What it does. This preference says you do not wish your attorneys to consent to life-sustaining treatment, even if that results in your death, if you have one or more of these:

• A progressive neurodegenerative condition. This is a condition where the brain or nerves get steadily worse over time.
• A condition likely to shorten your life. This covers an incurable or irreversible condition, several illnesses at once, or frailty.
• A serious brain injury. This is one that happens suddenly or gets worse quickly.
• A vegetative or minimally conscious state. This covers either state after a sudden brain injury.

Why it helps.

• It covers the hardest decisions. These are the situations where families most often struggle to know what someone would have wanted.
• It is written down. The law gives written statements particular mention, as explained below.
• It still allows judgement. As a preference, it guides your attorneys without tying their hands in a situation you could not foresee.

This preference needs one more step to work. Your attorneys can only give or refuse consent to life-sustaining treatment if you choose option A in section 5 of the LPA form. If you choose option B, your doctors decide. They must still take account of what you have written. So the preference is not wasted, but it guides your doctors rather than your attorneys.

What if a treatment is against your religion?

What it does. This instruction says your attorneys must not consent to any medical treatment that is against your religion.

Why it helps.

• It protects your faith. Your beliefs are respected even when you cannot speak for yourself.
• It binds your attorneys. Because it is an instruction, they must follow it.
• It removes pressure from them. Nobody can persuade your attorneys to go against your religion, because the LPA does not let them.

It helps to tell your attorneys which treatments you mean. If there is a specific treatment, such as blood products, make sure they and your doctor know. You can also raise it when a solicitor checks your LPA. The clearer your wishes, the easier they are to follow.

What the law and official guidance say

Life-sustaining treatment needs express permission. Section 11(8) of the Mental Capacity Act 2005 says a health and welfare LPA:

does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect

That express provision is option A in section 5 of the form.

The Office of the Public Guardian’s guide LP12 explains the choice. With option A, your attorneys can speak to doctors on your behalf as if they were you. With option B, doctors will make decisions about life-sustaining treatment. The guide defines life-sustaining treatment as care, surgery, medicine or other help from doctors that’s needed to keep someone alive.

Your written wishes count. Under section 4(6), anyone deciding in your best interests must consider:

the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity)

They must also consider the beliefs and values that would be likely to influence his decision if he had capacity. That is where your religious beliefs come in.

A safeguard. Under section 4(5), a person deciding whether life-sustaining treatment is in your best interests must not be motivated by a desire to bring about his death.

Preferences and instructions work differently. LP12 says attorneys should pay attention to your preferences, although they don’t have to follow them. Instructions are different: If you write instructions, your attorneys must follow them. The guide also warns that you must be careful not to write anything that contradicts what you have said elsewhere in your LPA or requires your attorneys to break the law. If you do, it could make your LPA unworkable.

Two of our clauses follow LP12’s own examples. Its example preferences include I’d like to be prescribed generic medicines where they are available. Its example instructions include My attorneys must not consent to any medical treatment involving blood products, as this is against my religion.

What about an advance decision?

An advance decision is a separate document. Some people call it a living will. It lets you refuse a specific treatment in advance, for a time when you cannot decide. Under section 26(1), a valid and applicable advance decision has effect as if he had made it, and had had capacity to make it. So it binds your doctors directly.

For life-sustaining treatment, section 25(5) and (6) add formal rules. The decision must say it applies even if life is at risk. It must be in writing, signed and witnessed.

Be careful if you have both documents. Under section 25(2)(b), an advance decision is not valid if you later make an LPA giving your attorneys authority over the same treatment. LP12 puts it simply: your LPA might override your advance decision. If you have an advance decision, say so in your LPA, and take advice on how the two fit together.

Without these clauses

• Your attorneys must guess. They may know you well, but they may never have talked with you about dying.
• Your family may disagree. One relative may want every treatment tried. Another may be sure you would not.
• Your doctors have less to go on. They must consider your wishes, but they can only use what they can find out.
• A court may have to decide. When there is real disagreement or doubt, the Court of Protection may be asked to rule.

What happened in Briggs v Briggs

Paul Briggs was a police officer and a former soldier who had served in the Gulf War [103]. On 3 July 2015 he was riding his motorcycle to work when he was hit in a road accident. He suffered serious brain injuries and was left in a minimally conscious state [1]. He was kept alive by clinically assisted nutrition and hydration, which means food and fluid given by tube.

Mr Briggs had made no advance decision and no LPA. His wife asked the Court of Protection to decide whether his treatment should continue. Everyone agreed on one point. If he had made a valid advance decision refusing that treatment, it would have been decisive [(10)].

Instead, the court had to work out what he would have wanted. The hearing lasted four days [(12)]. His wife, mother, brothers, sister-in-law and a police colleague all gave evidence [96]. They described conversations. When his mother-in-law refused tube feeding, he told his wife that he would never want a feeding tube [108]. Watching a television programme, he said he would not want to be kept alive on machines, as it was not living [110].

The judge, Mr Justice Charles, accepted that these conversations do not specifically address his exact situation [102]. He also noted that a written statement would be helpful, but that in real life many if not most relevant expressions of wishes and feelings will not be in writing [72].

The judge was sure what Mr Briggs would have decided [101]. He held that the court should not consent to further treatment on his behalf [129]. In his words, the court was doing on behalf of Mr Briggs what he would have wanted and done for himself [130].

The lesson. Mr Briggs’s family knew him well, and the court believed them. But his wishes lived only in their memories. A grieving family had to prove them in court, under questioning, while he lay in hospital. We cannot say what would have happened if he had written his wishes down. We can say that writing them down gives your family something firmer to rely on.

Preference or instruction?

Three of these clauses are preferences. Medical situations are hard to predict, and a preference lets your attorneys respond to the facts in front of them. That matters most for life-sustaining treatment, where a rigid rule could fit a situation you never imagined.

The religious beliefs clause is an instruction, following LP12’s own example. Faith is not something most people want weighed against other factors. If you want a refusal of treatment to bind your doctors directly, an advance decision may suit you better. Our guide to daily life, beliefs and pets covers other ways to record your faith. If you are unsure whether you need a health and welfare LPA at all, see which LPA you need.

This article is for general information and is not legal or medical advice. Please talk to your doctor about your health. If you are thinking about refusing treatment, or have an advance decision and want to make an LPA, please get in touch.

Sources

• Mental Capacity Act 2005, section 4 on legislation.gov.uk. Best interests, including sections 4(5) and 4(6).
• Mental Capacity Act 2005, section 11 on legislation.gov.uk. Life-sustaining treatment and LPAs in sections 11(7) and 11(8).
• Mental Capacity Act 2005, section 24 on legislation.gov.uk. What an advance decision is.
• Mental Capacity Act 2005, section 25 on legislation.gov.uk. When an advance decision is valid and applicable.
• Mental Capacity Act 2005, section 26 on legislation.gov.uk. The effect of an advance decision.
• LP12: Make and register your lasting power of attorney, Office of the Public Guardian. Section 5 on life-sustaining treatment, and the example preferences and instructions.
• Briggs v Briggs [2016] EWCOP 53 on Find Case Law. Judgment of Mr Justice Charles, 20 December 2016. The judgment opens with a numbered summary, shown here in brackets such as [(10)]. Other paragraph numbers are the main judgment.
• Briggs v Briggs [2016] EWCOP 53 on BAILII