Best interests

An MDU member needed reassurance when an elderly patient's adult children disagreed about their mother's best interests.

The scene

A GP member called the MDU's advice line about an elderly female patient, who had been cared for in a nursing home since having a stroke.

The patient was unable to speak or communicate, had a dense hemiplegia and was being fed via a percutaneous endoscopic gastrostomy (PEG). Her condition had remained stable since her discharge from hospital, but her GP (the MDU member), her carers and family all agreed that she lacked capacity to make decisions about her health and welfare, and that a care plan should be put in place to facilitate her care.

All agreed with a DNACPR decision that was made during the patient's hospital admission. The GP considered it would be appropriate to prescribe antibiotic therapy for chest, skin or urine infections, but that it would not be in the patient's best interests to be admitted to hospital if she failed to respond to antibiotic therapy administered at home.

The patient's daughter told the GP that she disagreed with his view, saying her mother had no quality of life and was "being kept alive by the PEG". She felt that was cruel and not what her mother would have wished, and that her mother should be "allowed to die". The daughter told the care staff and the GP that she didn't want any active treatment (including antibiotics) for her mother and that she felt the PEG feed should be stopped.

However, the patient's son said that he agreed with the approach set out by the GP. He felt his mother was comfortable and well cared for at her nursing home, but that she would not have wanted to be re-admitted to hospital.

He therefore wanted her to have treatment to keep her comfortable (including antibiotics) at the nursing home. He'd also told the GP that he didn't get on with his sister, and that the two of them are unable to reach agreement about their mother's care.

The GP had arranged to meet with the nursing home staff and the patient's son and daughter the following week, but was concerned that it was likely to be a difficult meeting and was unsure who had the 'final say' if there was a disagreement.

MDU advice

The MDU adviser agreed that the approach being taken was appropriate. Everyone had agreed that the patient lacked capacity as defined by the Mental Capacity Act 2005, and the adviser explained that it would therefore be important to document a capacity assessment, and to check there was no advance decision or lasting power of attorney for health and welfare.

Having confirmed this, decisions about medical care would then need to be made by the attending GP (the 'decision maker'), in the patient's best interests. The adviser suggested that chapter five of the Mental Capacity Act Code of Practice would be helpful when considering how best to approach the meeting.

The GP would be the decision maker as the question related to the appropriateness of antibiotic therapy, and it would be his responsibility to work out what would be in the patient's best interests by considering any previous wishes, values or beliefs she was known to hold, and by taking into account the views of her carers and family.

Paragraphs 5.63- 5.69 of the Code of Practice provide helpful guidance to decision makers faced with situations where family members disagree about best interests.

As the decision maker, the GP would need to try and find a way of balancing the differing views about the patient's care and to decide between them. It might be possible to reach an agreement with the daughter at the meeting, but if not, involving an advocate to act on the patient's behalf could be considered. The GP could also offer a second opinion from a GP colleague.

However, the responsibility for working out the patient's best interests and deciding on her medical care lay with the GP, as the decision maker. If the daughter disagreed with the final conclusions, it might be useful to arrange a more formal best interests case conference. Ultimately, if all other attempts to resolve the dispute failed, the Court of Protection might need to decide on the patient's best interests, but this would be unusual.

The outcome

The GP felt more confident in his role discussing it with the MDU adviser, and agreed that reviewing the MCA Code of Practice ahead of the meeting would be helpful.

The adviser hoped that an agreement on the patient's best interests could be reached at the meeting, but assured the GP of ongoing MDU support if it couldn't be resolved, or if the GP received any complaint from the daughter about his eventual decision.

This dilemma is fictional but based on members' experiences and the types of calls we receive to our advice line.

This page was correct at publication on 29/06/2022. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.