In the course of recent work (including in the context of the revision to the MCA Code of Practice) an interesting, important, and under-acknowledged phenomenon has come to light. The focus of almost all guidance dealing with the interaction between health and social professionals and attorneys is upon the need for those professionals to view the attorney – if they are acting within the scope of their authority – as if they were the donor themselves. The guidance also (often) then goes on to identify what they should do if they do not think that the attorney is acting in the best interests of the donor as they are required by the MCA to do (spoiler alert, unless they can legitimately persuade the attorney to take a different course of action, the professionals will need to consider going to the Court of Protection for the attorney either to be directed to act differently or, in extremis, removed*).
However, because of the – understandable – desire to emphasise the role of the attorney, there has perhaps not been a sufficient recognition of the fact that there will be times when an attorney being asked to make a decision on behalf of the donor simply cannot do so. We have addressed this in the most recent iteration of the 39 Essex Chambers guide to best interests decision-making, but it is perhaps worth discussing in a little more detail.
The situation I have in mind – as it is the starkest – is where a health and welfare power of attorney includes the power for the attorney to make decisions about life-sustaining treatment and the donor’s treating medical team ask whether the attorney consents on the donor’s behalf to starting such treatment. They provide the attorney with the information and support that they need to be able to make the decision, and look to the attorney to say ‘yes’ or ‘no’ to the treatment that they propose. The attorney may be clear that the donor would not wish the treatment to be started, so know that starting it would not be in their best interests. However, they may, though, find that when it comes to refusing on their behalf, they cannot face doing so, perhaps because the responsibility for so doing feels overwhelming.
What should happen at that point? In the absence of current official guidance (a situation I hope will be remedied in due course in the Code of Practice), it might perhaps be useful to look at the matter from first principles.
As a starting point, the team should seek to assist the attorney with any further support that they may require (including to consult with others, as the attorney is required to do by s.4(7) MCA 2005, as it may well be that the consultation process will reinforce the attorney in the fact that they are ‘doing the right thing’), but that may go only so far.
Seeking to berate the attorney with the fact that they had accepted the trust of the donor in agreeing to take on the obligations as attorney and need to live up to that trust is also unlikely to be productive. Apart from anything else, it is entirely possible for a person genuinely and in good faith to think that they will be able to act when questions of life or death treatment arise, and to have no actual conception of what it would feel like to be asked to make that decision when they do.
The one thing that should not happen is for matters simply to stop and paralysis to hit the treating team as well.
Luckily, the MCA provides the answer, because it does not suspend the ‘general authority’ to carry out acts in relation to care and treatment in s.5 where an attorney has been appointed. Rather, it provides more subtly in s.6(6) that that power cannot be exercised (technically the defence in s.5 cannot be relied upon) where to do so would conflict with a decision made by the donee of a lasting power of attorney within the scope of their authority (and in accordance with the provisions of the MCA).
If the attorney is ‘frozen’ and cannot make the decision – here to consent to or refuse treatment – then there is no ‘conflicting decision.’ There is therefore no bar upon the doctors adopting the conventional approach to determining whether or not to treat a patient who lacks capacity to consent. This approach is set out in detail in our guide, and also the BMA’s toolkit. but for present purposes the following summary will do.
The doctors should decide whether they reasonably believe that treating is in the donor’s best interests, taking into account the views of the attorney, and, in particular, their understanding of what the person would have wanted. If they reasonably believe that treatment is in the donor’s best interests, then they can provide it. If they reasonably believe that it is not (and in this case, it would appear likely that it is not, based upon the attorney’s understanding of the donor’s wishes), not only should they not provide it, they in fact cannot provide it.
Crucially, however, the responsibility for making the decision whether or not to treat would not, in this situation, now lie with the attorney, but with the treating team.
There may be other examples where the attorney is not able to make decisions that are needed, for instance, if they are routinely out of the country when decisions about the person need to be made and are not contactable. If the attorney finds that they are not in a position to carrying out the tasks that the donor has trusted them to do, they should consider whether they should ‘disclaim’ their role as attorney.
*And, whilst waiting for the Court to decide what to do, can provide life-sustaining treatment or do any act they reasonably believe to be necessary to prevent a serious deterioration in the donor’s condition (see s.6(7) MCA 2005).