Managing the affairs of someone else – A professional appointment – Health and Welfare Decisions – Part 2
I have had quite a bit of feedback on the article I wrote on this subject, so I thought it worthwhile to go into some more detail about this issue.
In any one day, we make thousands of individual health and welfare decisions, including such things like how much porridge to put on the spoon each time we take a separate spoon full and how big a gulp or sip of tea we have each time we drink our tea. The vast majority of these decisions no attorney or deputy would get involved with, they would happen with the carer on hand without the deputy sitting there saying that the tea is too hot by 1 degree or there is 10ml too little milk in the coffee! So, whilst that sheds light on what as a professional I won’t do, it still doesn’t necessarily assist with what I would do.
It is also important to appreciate that the level of understanding that we have for any given situation as an able person is often quite low, yet we don’t question capacity. The House of Lords undertook a post legislative scrutiny of the Mental Capacity Act (MCA) in 2014 and they found that in general, health professionals are “paternalistic” and social services are “risk averse” and as such the MCA was not working as well as it was envisioned. Life is full of poor decision making and bad judgement by all of us sooner or later! How many times has anyone been asked to discuss liver disease and its full gamut of health consequences when ordering their third cocktail and a detailed assessment of the impact on their immediate family!
Generally, the key decisions that someone wants their attorney to make are around life sustaining treatment and where they live. There can also be some other key decisions that are important to that one person, but are not necessarily generically important, such as ensuring that the person always has a particular brand of chocolate in their room or a drink of wine (which in one case I dealt with had to be thickened to make it like a jelly sweet!).
Life sustaining treatment is not just CPR (Cardiopulmonary Resuscitation) otherwise known as chest compressions, it can be anything that sustains life, including in some circumstances food, fluid, antibiotics or trips to hospital. Most people want these important decisions reserved back to their family or someone who is not going to make a risk averse decision. I met an elderly man recently and what he wanted was to live at home in his last few days / weeks / months with his dog, he was in hospital and he missed his dog. There was risk in him going home in his poorly state of health, but he was less concerned about the risk and more concerned about being with his dog. This is where the high level of understanding is then expected of a person with an impairment, yet this same high level of understanding is not necessarily expected of able bodied people and all the detailed consequences of the decisions they make. This is where principle 3 of the Mental Capacity Act is relevant “A person is not treated as unable to make a decision merely because it is an unwise decision”.
The other key decision is about where someone lives, which in the context of being an attorney is usually relevant when the person is in hospital and wants to leave, usually to go home or when there is a question that they might need to go into care and they want to stay at home. When there is a bed shortage in hospital there can be pressure on the attorney to find a suitable care home for the person to go to within a very short space of time. I have been involved in a few cases where the suitable bed meant a delay of a couple of days to the right care home and when threatened with moving out to an available bed, as attorney they can refuse to allow that person to be discharged to the available bed, if it is unsuitable, to ensure that the few days for the appropriate bed is waited. The decision can also be about whether or not the person goes into care or stays in their own home.
Attorneys who take reckless chances are at risk of someone applying to the Court of Protection for their removal, but there is a difference between taking a measured risk and being reckless. This is the balance between length of life and quality of life and where the divide between those two things exists. The answer to that issue lies with a discussion with the donor of the power of attorney and with those who know the person well and then finally onto the broad by necessity shoulders of the attorney to take responsibility for the decisions that they make.