The BBC reported today that the patient at the centre of last weeks’ Court of Protection judgment in the case of Barnsley Hospital NHS Foundation trust vs MSP has died. The judgment of Hayden J in this very sad case is a poignant illustration of the complex and finely-balanced decisions that the Court of Protection is sometimes required to make at very short notice. This case came before him as an out of hours application made on a Friday evening and later heard by video conference. The patient’s consultant apologised for attending in his scrubs. This was also the first-case where the Official Solicitor was able to provide representation for P out of hours under their new rota system.
MSP had made an advance decision rejecting any form of treatment that would result in the formation of a permanent stoma, an opening in the abdomen from which waste is collected in a stoma bag. His family bravely supported his wishes, giving evidence that MSP hated living with a temporary stoma previously. Hayden J gave great weight to the advance decision and to MSP’s clearly expressed wishes, authorising a care plan that life-sustaining treatment should be withdrawn.
An advance decision, sometimes known as a living will, is a legal document in which a patient will specify which types of treatment they do, or do not, wish to receive in the event that they lose the capacity to decide for themselves in the future. This case illustrates the weight that is given to such decisions. Advance decisions should be made in writing, signed and witnessed, and are only valid where the person making the advanced decision still has the capacity to do so.
Another means of ensuring that our wishes are followed should the worst happen to us, is to make a Lasting Power of Attorney (LPA). LPAs enable the donor to nominate a person to make welfare and/or financial decisions in the event that they lose capacity in the future. The donor will specify whether the LPA covers life-sustaining treatment decisions, and can specify which treatments they wish to have.
During the pandemic many difficult decisions will need to be taken by those treating coronavirus patients in intensive care units. Many patients and their families will wish to ensure that their wishes are known and followed should the worst happen.
If you have any questions regarding Welfare Court of Protection, please contact Elizabeth Cleaver. If your enquiry relates to Wills, Lasting Powers of Attorney or Financial Court of Protection work, contact Amrit Rana.