The Mental Capacity Act 2005 sets out principles and powers aimed at maximising the decision-making ability of patients so that as many people as possible can decide for themselves what treatment and care they receive while allowing nurses to provide care and treatment in the person's best interests where they are incapable of making such decisions (Mental Capacity Act 2005, sections 1 and 4).
A key justification for introducing a law to regulate decision-making for those unable to make choices because of incapacity was to allow people to prepare for future incapacity by choosing people they trust to make those decisions on the their behalf.
In England and Wales, the Mental Capacity Act 2005 provides the opportunity for adults to do this through the use of lasting power of attorney (LPA) (Mental Capacity Act 2005, sections 9–14).
Lasting power of attorney
An LPA allows capable adults to nominate one or more people to act on their behalf if they are unable to make decisions themselves at some point in the future.
The 2005 Act provides for two types of LPA, which cover a range of circumstances:
- A finance LPA (referred to in the Act as a property and affairs LPA) and
- A health and care LPA (referred to in the Act as a personal welfare LPA).
Efforts have been made to encourage greater uptake of LPAs, including an advertising campaign by the Ministry of Justice, the creation of an online registration process and a reduction in fees to £82 per instrument. Fees are means tested and can be reduced or waived for those on benefits and low incomes.
Health and care LPA
Health and care LPAs allow a person to give legal authority to one or more persons to make health and care decisions on their behalf if they become incapable. The LPA is a formal instrument that must be properly completed and registered with the Office of the Public Guardian, before it can become effective (Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, reg 9).
The Public Guardian is appointed by the Lord Chancellor under Section 57 of the Mental Capacity Act 2005. It supports and enables people to plan for both their health and finances to be looked after should they lose capacity in the future. It also safeguards the interests of people who lack the mental capacity to make certain decisions for themselves.
In relation to LPAs, the Office of the Public Guardian has the following remit:
- To register LPAs
- To maintain a public register of LPAs and responds to requests to search the registers
- To investigate complaints, or allegations of abuse, made against attorneys acting under a registered power.
Health and care decisions can include such matters as where the person, known as the donor, should live, decisions about the donor's day-to-day care, arranging for the donor to be assessed for community care service, medical and dental treatment and consenting to medical examination or treatment on the donor's behalf (Mental Capacity Act 2005, section 9). It is for the donor to decide who to appoint as their attorney and what decisions they will be empowered to make.
Health and care LPAs are generally negatively framed. That is, they do not specify each decision the attorney is able to make as the instrument begins with the donor granting the attorney all the powers they need to make health and care decisions on their behalf if they lose capacity. It is then for the donor to decide if any of those powers should be removed.
The one exception concerns life-sustaining treatment. The Mental Capacity Act 2005, section 11(8) only authorises an attorney to make decisions about life-sustaining treatment if the LPA instrument has an express provision to that effect. In the current version of the health and care LPA this is set out in section 5.
Donors can require attorneys to make decisions together (jointly) or independently (severally). Donors can also set out more precisely decisions that attorneys must make together and those that can be made independently (Mental Capacity Act 2005, section 10(4)).
Nurses must be aware that, where the LPA requires joint decision-making and one attorney is not able to make the decision, the LPA becomes ineffective (Mental Capacity Act 2005, section 10(6)).
Who can be an attorney
Donors are free to choose who they trust to make decisions for them. The 2005 Act requires that an attorney must be an adult, and the donor can choose more than one person. Only the donor can select a replacement attorney – this authority cannot be vested in an attorney.
Donors can select:
- Family
- Friends
- Care staff
- Health professionals
- Lawyers.
A person can be an attorney for more than one individual and the LPA can make provision to remunerate the attorney.
Restrictions on use of a personal welfare power of attorney
Before an LPA for health and care becomes effective it must be registered with the Office of the Public Guardian and the donor must lack capacity to make the decision under consideration. Every decision that an attorney makes on a donor's behalf must be in their best interests (Mental Capacity Act 2005, section 4). For decisions about treatment section 11 of the Mental Capacity Act 2005 makes clear that an attorney:
- Has no power to make decisions about the donor's personal welfare, including care and treatment, where the donor has the capacity to make their own decisions
- Has no power to make decisions contrary to those specified by the donor in an advance decision refusing treatment which is valid and applicable unless the LPA specifically overrides the advanced decision
- Has no power to make life-sustaining treatment decisions, unless the LPA document expressly authorises this by means of a clear statement
- Can only authorise restraint where the donor lacks capacity, the attorney reasonably believes restraint is necessary to prevent harm to the donor and the restraint is proportionate to the likelihood of suffering harm and the seriousness of that harm.
In addition, an attorney cannot demand a specific form of medical treatment for the donor. Decisions of this nature are for the clinical judgement of the health professional providing treatment(Burke v GMC [2005]).
Impact on practice
Where a person lacks the capacity to make decisions, then nurses providing care and treatment must do so in that person's best interests (Mental Capacity Act 2005, section 4). Under the provisions of section 5 of the 2005 Act nurses have a general authority to provide care and treatment in a person's best interests where they:
- Take reasonable steps to establish that the person lacks capacity to consent
- Reasonably thinks that the care and treatment are in the person's best interests.
Where nurses follow these requirements, they are protected against allegations of trespass to the person (unlawful touching) by the Act (Mental Capacity Act 2005, section 5(2)). The purpose of section 5 is to allow for timely care and treatment of those who lack capacity unencumbered by unnecessary bureaucracy.
This general authority to act in a person's best interests in relation to care and treatment is not unfettered. A nurse will not be protected by section 5 of the 2005 Act if they perform an activity that conflicts with a decision made by an attorney in accordance with a LPA for health and care (Mental Capacity Act, section 6(6)).
To ensure that they are acting within the law, nurses must obtain a copy of the health and care LPA and ensure they are aware of and respect the authority of the attorney to make decisions where the donor lacks capacity to make the decision themselves.
If a nurse thinks that the attorney is not acting in the best interests of the donor they should discuss the matter with the donor, the doctor and the attorney. Where a conflict about care continues, it may be resolved by the courts. In this case, treatment that would be regarded as life-sustaining or necessary to prevent serious deterioration in the patient would continue (Mental Capacity Act 2005, section 6(7)).
Conclusion
A health and care LPA can authorise an attorney appointed by a person to make a range of decisions concerning their day-to-day care where that person is incapable of doing so themselves. This can include decisions about care and treatment. Nurses are bound by the decisions made by attorneys with authority unless they think the decision is contrary to the donor's best interests.
KEY POINTS
- A lasting power of attorney (LPA) allows capable adults to nominate one or more people to act on their behalf if they become incapable
- A health and care LPA allows a person to give legal authority to one or more persons to make health and care decisions on their behalf when they become incapable
- Health and care LPAs are generally negatively framed
- Nurses are bound by the decisions of attorneys acting according to the authority given in an LPA