Health and welfare LPAs, advance decisions, deputies and IMCAs

What is a lasting power of attorney?

A lasting power of attorney (LPA) lets a person, the donor, choose people to make decisions for them if they later lack capacity. The donor must be 18 or over and have capacity to make it (s9(2)). Attorneys must be 18 or over too (s10).

There are two kinds: health and welfare, and property and financial affairs. Each has its own prescribed form, and neither works until it's registered with the Office of the Public Guardian (Code 7.14).

Attorneys must follow the MCA principles and act in the donor's best interests (s9(4)). Older enduring powers of attorney still work, but only for property and affairs (Code 7.5).

Health and welfare LPA vs property and financial affairs LPA

What an attorney can and can't do

• Consent or refuse treatment once the donor lacks capacity, unless the LPA excludes healthcare decisions (Code 7.26).
• Not life-sustaining treatment, unless the LPA expressly gives that power (s11(8)).
• Not against a later advance decision. An advance decision made after the LPA wins. An LPA made after an advance decision, covering the same treatment, replaces it (s25(2)(b); Code 9.33).
• Not Part 4 MHA treatment. An attorney can't consent to or refuse treatment for mental disorder given under Part 4 to a detained patient (s28; Code 7.27). ECT is the exception: a SOAD can't certify it against an attorney's valid refusal (s58A(5)).
• Not demand treatment that clinicians don't think is appropriate (Code 7.28).
• Restrain only to prevent harm to the donor, and proportionately (s11(1)-(4)). An attorney can't authorise a deprivation of liberty (Code 6.49).

Deputies and the Court of Protection

Without an LPA, the Court of Protection can make the decision itself or appoint a deputy (s16(2)). A court decision is preferred, and a deputy's powers should be as limited in scope and time as possible (s16(4)).

Welfare deputies are rare. The Code expects them only in the most difficult cases, such as a long series of linked decisions or serious family disputes (Code 8.38-8.39).

• A deputy can't decide what they reasonably believe the person can decide for themselves (s20(1)).
• Can't override an attorney acting within their authority (s20(4)).
• Can't refuse life-sustaining treatment (s20(5)), or ban contact with a named person (s20(2)).
• Can restrain only with express court authority, to prevent harm, and proportionately (s20(7)-(11)).

Checking an attorney's or deputy's authority: step by step

1. Ask whether there's an LPA or a deputyship, and record who told you.
2. Ask to see the registered LPA or the court order. An unregistered LPA gives no power.
3. Check the type, any conditions, and, for life-sustaining treatment, the express statement.
4. Check the person lacks capacity for this decision now. If they can decide, the attorney has no say (s11(7)(a)).
5. Check for an advance decision, and which came first.
6. Record the attorney's or deputy's decision. If you think it isn't in the person's best interests, discuss it, get a second opinion, then apply to the Court of Protection (Code 7.29).

What is an advance decision to refuse treatment?

An advance decision (ADRT) is a refusal of a specified treatment, made by someone aged 18 or over with capacity, to apply if they later lack capacity to consent (s24(1)). People often call it a living will.

It can only refuse. Nobody can demand a treatment in advance, though a written request still counts in best interests (Code 9.5). Everyday language is fine (s24(2)). It can be withdrawn or changed at any time while they have capacity, and a withdrawal needn't be written (s24(3)-(4)).

Is an advance decision to refuse treatment legally binding?

Yes, if it's valid and applicable to the treatment. It then has the same effect as a refusal made with capacity at the time (s26(1)). Best interests doesn't come into it, even if you think the refusal is wrong for them.

If you're satisfied it exists, is valid and applies, you must follow it. Treating anyway could lead to a claim for battery or a charge of assault (Code 9.57). If you're not satisfied, you can treat in their best interests, recording why (s26(2); Code 9.53).

In genuine doubt, the Court of Protection can decide whether it exists, is valid or applies (s26(4)). Meanwhile you can give life-sustaining treatment or prevent a serious deterioration (s26(5)). The court can't overturn a valid, applicable refusal (Code 9.68).

What makes an advance decision invalid or not applicable?

Take special care with an old decision that hasn't been reviewed. Ask relatives and the GP what they know, and check the notes (Code 9.49, 9.51).

Advance decisions and the Mental Health Act

If a patient's treatment is regulated by Part 4, the MHA can override their advance refusal of treatment for mental disorder (MCA s28; MHA Code 13.12). An advance refusal of treatment for anything else still binds (MCA Code 9.37).

ECT is the exception. A SOAD can't certify ECT for a patient who lacks capacity if it would conflict with a valid, applicable advance decision, or an attorney's, deputy's or the court's decision (s58A(5)). Only emergency treatment to save life or prevent serious deterioration can override that (s62(1A)).

Even where you can override it, an advance decision tells you a lot about the person, and treatment should take account of it (MHA Code 24.6). See ECT and section 58A and consent to treatment.

Advance statements, basic care and conscientious objection

• Advance statements. Written wishes or requests aren't binding, but you must consider them in best interests (s4(6)(a)). If you don't follow one, record why (Code 5.43).
• Basic care. An advance decision can't refuse warmth, shelter, hygiene or the offer of food and water by mouth. It can refuse clinically assisted nutrition and hydration (Code 9.26, 9.28).
• Nothing unlawful. Nobody can ask for help to end their life. The MCA doesn't change the law on murder, manslaughter or assisted suicide (s62).
• Conscientious objection. You needn't act against your beliefs, but you mustn't abandon the patient. Arrange for someone else to take over their care (Code 9.61-9.63).

How to make an advance decision to refuse treatment

1. Be 18 or over, with capacity to make the decision.
2. Say which treatment you're refusing and when the refusal should apply. Everyday words are fine.
3. For life-sustaining treatment, write it down, sign it in front of a witness who also signs, and add a statement that it applies even if your life is at risk.
4. There's no set form. Include your details, your GP's details, the decision and the circumstances (Code 9.19).
5. Talk it through with a doctor or nurse if you can. It's sensible, but not required (Code 9.14, 9.27).
6. Tell people it exists, give your GP a copy, and review it regularly (Code 9.29, 9.38).

What is an IMCA?

An independent mental capacity advocate (IMCA) is a statutory advocate for someone who lacks capacity and has nobody appropriate to speak for them except paid carers (Code 10.1). In England, the local authority arranges the service (s35).

An IMCA can see the person in private and look at relevant health and social care records (s35(6)). They must be independent of whoever is making the decision.

When must you instruct an IMCA?

The Code's examples of serious medical treatment include chemotherapy, ECT, major surgery or amputation, and withholding or stopping clinically assisted nutrition and hydration (Code 10.45).

When an IMCA isn't needed

• Someone to consult. A suitable relative or friend, someone the person named, or an attorney or deputy with the relevant authority (ss37-39, 40).
• Urgency. Urgent treatment or an urgent move can go ahead first. Record why, and instruct an IMCA for what follows (s37(4); Code 10.46, 10.57).
• MHA treatment or residence. There's no duty for treatment regulated by Part 4 or 4A, or a stay the MHA requires (ss37(2), 38(2), 39(3)).

That last exception is narrower than people think. A detained patient who lacks capacity to consent to cancer treatment, with nobody to consult, still qualifies for an IMCA (Code 10.50).

What an IMCA does, and doesn't do

• Supports the person to take part as fully as possible in the decision (s36).
• Gathers information and finds out their wishes, feelings, beliefs and values.
• Looks for alternatives, and can ask for a further medical opinion.
• Reports. The decision-maker must take the report into account (ss37(5), 38(5), 39(6)).
• Challenges decisions about capacity or best interests, like anyone interested in the person's welfare (Code 10.33).

An IMCA doesn't make the decision. Nor are they an IMHA, who supports patients under the MHA: see patients' rights and advocacy.

The Court of Protection

The Court of Protection has the powers of the High Court (Code 8.2). It can declare whether someone has capacity and whether an act is lawful (s15), make decisions or appoint deputies (s16), and rule on advance decisions (s26(4)).

It authorises deprivation of liberty outside hospitals and care homes, usually on form COP DOL10, and hears challenges to DoLS under s21A. Apply when a decision about life-sustaining treatment is finely balanced, doctors disagree, or the family doesn't agree. See deprivation of liberty.

Ill-treatment or wilful neglect: section 44

It's a criminal offence for someone caring for a person who lacks capacity, or their attorney or deputy, to ill-treat or wilfully neglect them (s44). The maximum on indictment is five years' imprisonment.

It covers paid and family carers, and applies to children too, where their lack of capacity comes from an impairment of the mind or brain (MCA Code 12.5). If you suspect it, raise a safeguarding concern.