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Advice

Do not resuscitate, advance decisions, LPAs and safeguarding

The tabloids this week have reported that elderly people are being pressured into signing 'do not resuscitate forms,' it is important to take stock of…

With the alarming news from the tabloid press this week that elderly people across the UK are being pressured into signing 'do not resuscitate forms,' (“DNR”) it is important to take stock of the options available and how to safeguard against such alleged pressure.

The Daily Mail and the Mirror quote Age UK this week highlighting a case where an 85-year-old woman was called by her GP and asked to decide whether, should she come down with coronavirus symptoms, she wanted to go to hospital or sign a DNR form. Concern was expressed as to whether this could lead to the lady concerned feeling, that because of her age, she was a burden on the NHS.

What can I do?

Advance decisions (“Ads”) or ‘Living Wills’ are popular documents to make, especially if you are concerned about what may or may not be done based on your ‘best interests’.

This could be coupled with a Lasting Power of Attorney (“LPA”) for health and welfare to cover any future medical decisions which may be necessary. If you have both documents, then the one that you have made more recently will take priority when a decision needs to be made about your treatment and care.

An LPA can only be used after it has been registered with the Office of the Public Guardian. This usually takes around eight weeks if there are no mistakes in the application.

As a result, it may be best to get a solicitor to check the document as she can also provide the necessary certificate of capacity after discussing the document with you.

Solicitors are impartial and can run through options for a client to suit their personal belief and views so that a client’s autonomy is preserved.

Differences

It is important to note that an AD covers refusals of medical treatment. It can make positive requirements too, which local authorities and medical professionals would need to take into account once they have been made aware of the document. They only apply, however, to the treatments and circumstances that are specifically included.

An LPA instead allows your attorney to make any decision about your health and personal welfare. This includes where you live and how you are cared for, your diet and what you wear as well as decisions about medical treatment.

In an LPA (if made after the AD) your attorney will be able to override what’s written in your AD so long as you have included the power to make decisions about life-sustaining treatment. This will enable your attorney to decide what is in your best interests rather than leaving it to medical professionals who do not know you. If you have not set out any wishes in an existing LPA then an AD can be (and we would advise should be) drafted to work with your LPA to ensure the wishes contained within it can be carried out.

One of the helpful things about an LPA is that you are choosing who you want to be your attorney. This trusted person or persons can be children, relatives, friends and they can make decisions when you cannot. You are effectively appointing an advocate who can shield you from pressures which may arise from circumstances and concerns about public policy.

Conclusion

Unfortunately, given the current lockdown and pandemic many people feel unable to prepare or discuss LPAs. However, we have been taking increasing numbers of queries from clients on this issue. We are available for Skype, Zoom, FaceTime conversations or even a good old fashioned telephone call.

Clients can, and perhaps should, make an AD if they are concerned about the immediate future and have health concerns. A document drafted by a solicitor is best but a simple statement can be used as soon as it has been completed, signed and witnessed. We recommend LPAs and Ads both be made because the LPA enables an attorney you have chosen to continue to advocate for you should you lose mental capacity in the future and the AD enables you to set out full detail surrounding your wishes for end of life and life sustaining treatment.

Attorneys should, where appointed, work with the local authority or NHS if safeguarding or best interests meetings are convened (although these are unlikely in the present circumstances). The NHS and local authority will of course always be trying to assess what is in a patient’s best interests, but an LPA gives the attorney the authority to have a voice (and in exceptional cases where there's disagreement) a final say in the decision making.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with John-Paul Dennis at john-paul.dennis@weightman.com.

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