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28 Dealing with Someone Else's Affairs
11. Can I deal with decisions about someone's healthcare?
If the person you care for needs medical treatment, only they can agree to that treatment. No-one - not even husbands or wives, partners, close relatives, professional carers or independent advocates - can legally give or withhold consent to medical treatment on behalf of another adult.
If you have been appointed as attorney or receiver, you have no power to make healthcare or welfare decisions. However, if you are closely involved with the person's affairs, healthcare professionals may consult you when making decisions about their medical treatment and what would be in their best interests (unless the person had made it known that they wouldn't want you to be involved).
Can care and treatment be given without consent?
They should always consult people close to the person to agree the best course of action or treatment, unless the person has made clear in the past that they would not want a particular person involved.
You should never be asked to sign a consent form on behalf of the person you care for, but you may be asked to sign a form to say that the doctors or other healthcare professionals have discussed the person's best interests with you.
Can decisions about healthcare be made in advance?
You should try to find out whether the person you care for has made any such plans. They may have already discussed these plans with you or other people close to them while they still had the capacity to make such decisions. If the person has made an advance statement, you should tell the doctor, nurse or other healthcare professional involved and give a copy of any signed document to them.
If someone has made an advance statement but later wants to change their mind, they can simply destroy any written document and tell everyone who knew about it that it is no longer valid. As long as a person has the mental capacity, they can make a new statement at any time.
What can advance statements include?
Advance statements can be a combination of some or all of the above.
No form of advance statement can make a doctor do something unlawful, including action that is meant to end someone's life, such as assisting suicide.
Are advance statements legally binding?
However, an advance directive refusing treatment for mental disorder can be overruled if the person is admitted to hospital for treatment under the Mental Health Act 1983.
Advance directives are relevant only when the person has lost mental capacity. If you make a decision after you have made an advanced directive, this overrides the advance directive, as long as you made the decision when you were able to do so.
Any advance statements asking for (rather than refusing) specific treatments or expressing wishes or preferences should be respected and taken into account. They can help healthcare professionals know how a person would like to be treated and what form of treatment may be in their best interests. However, professionals may not have to follow with those wishes if, in their professional judgement, the treatment would be pointless, unnecessary for the person's health, or inappropriate.
Doctors must give special consideration to advance statements that ask for life-sustaining treatment, such as artificial nutrition and hydration (ANH). Wherever possible, doctors should take all steps to prolong someone's life, but, in exceptional cases or if someone is close to death, providing ANH may cause them great suffering and loss of dignity. Doctors must take into account of a patient's wishes in their advance statement but weigh these carefully against all other relevant factors in deciding whether it is in the best interests of the patient to provide or continue ANH. Doctors sometimes must apply to the High Court if they want to withhold or withdraw life-sustaining treatment where there is doubt about the patient's best interests.
Whatever the situation, professionals who ignore or override an advance statement must do so carefully and must be able to give clear reasons to justify their decision.
What if there is a disagreement about someone's capacity or best interests?
Healthcare or other professionals and people close to the person can usually agree on whether someone has the capacity to make a particular decision or what would be in their best interests. However, if this proves impossible, anyone involved can ask the High Court to decide what is in the person's best interests.
The courts have decided that some decisions about medical treatment are so serious that they must give a ruling in each case. These are:
The court can be asked to make other healthcare decisions, such as those involving ethical dilemmas or untested treatments (for example, new treatments for variant CJD).
The court can also be asked to decide about the person's personal welfare, such as where they should live or whether they should have contact with other family members, in cases where there are conflicts that can't be resolved between professionals or family members.
If it seems that court procedures may be needed, you should seek advice from a solicitor.
This leaflet is published by the Legal Services Commission (LSC). It was written in association with Penny Letts, a policy consultant specialising in mental health and capacity issues.
Leaflet Version: November 2019
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