Who makes your medical decisions if you lack capacity?
9 April 2019 by Andrea Godfrey
The man (NLH) was in the latter stages of a condition known as Prion Disease. The local authority wanted samples taken for a paternity test required in family proceedings in relation to NLH’s son. The result would have enabled the possibility to be considered as to whether the child may have inherited NLH’s condition.
If, due to lack of capacity, a person is unable to consent to, or make decisions on medical matters, then someone else can make those decisions on their behalf; providing there is a Lasting Power of Attorney for Health and Welfare in place (LPA). However, you have to have the capacity to make a LPA. If you do not have a valid LPA and lose mental capacity, then the only other way to obtain the right to make these decisions on someone’s behalf is to apply to the Court of Protection.
Making an Application
The application can be made to be appointed as a Deputy for that person. This would regard all decisions relating to their personal welfare (financial matters are a separate application); or for a specific decision to be made, as was the case here.
However, in this case the Court criticised the parties. This was because before the application was finalised and permission granted, an employee of the testing company went to the care home and took a sample with the consent of NLH’s family, but without the consent of NLH himself. The Court made it very clear that doctors could be criticised and potentially face a claim for damages; this is because it may be considered a breach of human rights if they take bodily samples from people who lack capacity without a court order.
The Court of Protection are often called upon to make decisions on behalf of others.
Examples of cases over the last few weeks are:
- An application that FG undergoes an operation to repair his shoulder fracture or dislocation. Sadly FG had a diagnosis of treatment resistant to paranoid schizophrenia. The NHS Trust considered it in his best interests to have sedation and anaesthesia for the operation to be done.
- An application that PW who was a 60-year-old diabetic man (PW), undergo a leg amputation due to sepsis. He had been diagnosed with paranoid schizophrenia and lacked capacity.
- The Court had to determine whether a 30 year old woman with learning disabilities had capacity to make various decisions. These decisions included where she lives, consent to sexual relations, as well as to use the internet and social media.
The Court of Protection consider each case on its separate application. At FJG Solicitors, we have a dedicated team to assist with any Applications that need to be made to the Court of Protection as it is a very complex and sensitive area of law, for more information contact us by calling 01206 700113 or email [email protected].
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