It isn’t too often that a TV programme brings into focus a situation which relates to the work I do with the Court of Protection (COP) and Lasting Powers of Attorney (LPA). However, a recent episode of Holby City (‘The Perfect Storm’) featured a storyline which showed how necessary a LPA could be in a medical situation where a patient does not have capacity to make decisions in respect of life sustaining treatment and organ donation.
The episode unfolded with a family being involved in a serious car crash. The mother was critically injured and placed on life support. The father was unconscious and required lifesaving surgery. The adult daughter fared much better and was the only one that was conscious and therefore able to make decisions in respect of her parents’ treatment.
As soon as the daughter is made aware that her mother will never recover from her injuries and is only alive due to the life support machines, she states that her mother would want to be let go and her organs to be used for medical treatment. However, when the father regains consciousness he retracts his daughter’s consent.
In the end the daughter persuaded her father that her mother would never regain consciousness due to the injuries she had sustained, and he reluctantly agrees to go ahead. But, what if the father refused to give consent and the daughter wanted to pursue it? Cue a lengthy court application and the mother’s life and organs being placed in the hands of a judge who knows nothing of her personal wishes and preferences for organ donation and life sustaining treatment.
This subject is not often one that people want to consider, much like considering their mortality when arranging to do their Will, but it is important to know the pitfalls and limitations involved when a person does not have a LPA and is in a situation like the one above.
A LPA can only be obtained when a person has the mental capacity to consent to giving that power to their attorneys. In the circumstances above, due to being unconscious, the mother was unable to do this and it was not clear whether one was already in place. Had the mother in Holby City obtained a LPA before the accident, she could have stated within it that she wished for her organs to be donated and that would trump any opinions that the father had. She could also have included her wishes in respect of life sustaining treatment, whether she wanted to be kept on artificial ventilation, whether she wanted to be resuscitated or not and other various treatment and care wishes.
If the father had pushed his point and refused to consent to stopping life sustaining treatment, without a LPA providing the mother’s wishes, the daughter would not have been able to push the hospital into carrying out her mother’s wishes. If she really wanted to ensure that her mother’s wishes were respected, she could have made an application to the COP for the Court to make a decision on this.
In comparison to a LPA, a COP application is a lengthy and costly process, which would mean that in this situation the mother would need to be kept on life support until the Court had made a decision. It would also mean that the family members would need to attend Court and state their case for consenting or not consenting to life-sustaining treatment and organ donation. At such an emotional and difficult time for a family, the additional stress is not needed and it can cause divisions within the family and animosity that can be avoided with a LPA in place.
It should also be noted that the LPA has the option to select who you would prefer to make any final decisions on life sustaining treatment if the need arises. You can give your attorneys the power to refuse or consent to treatment, or you can give the Doctors the power to refuse or consent treatment. Whilst Doctors will always liaise with family members and discuss all the options with them, they will always look at what is best for you from a medical point of view, whereas your family would have more of an understanding of your personal wishes. For example, if you do not want to have life sustaining treatment if your quality of life is going to be severely affected, your attorneys would be able to refuse any treatment offered by the Doctors, even if the Doctors would have continued with the treatment.
If you have any definite preferences or feelings in how you would like to be cared for or treated should you not have capacity in the future, then you should consider having a LPA prepared. At Amphlett Lissimore, we can advise you on the different types of Lasting Powers of Attorney and put one or both of these in place for you. As with a Will, having a Lasting Power of Attorney in place allows you to make these important decisions for yourself and save your family and next of kin from difficult decisions and lengthy legal processes.
About the Author
Katie Brett is a Chartered Legal Executive specialising in Wills and Lasting Powers of Attorney. She also has extensive experience in Court of Protection, Probate and Estate administration. Whilst she is based in Crystal Palace office, she regularly meets with clients at our Bromley and Camberwell offices.