Valid Lasting Power of attorney

The scene

A GP sought the MDU’s advice in relation to an elderly patient under his care in a nursing home. The patient suffered from dementia and no longer had capacity to make decisions for herself. When the patient developed a chest infection medical staff felt it was inappropriate to treat her aggressively. They discussed their plans with a close friend of the patient who visited daily and who felt that the patient would not want to be treated under these circumstances.

The following day, the GP was surprised to receive a call from the patient’s nephew strongly disagreeing with the decision not to treat his aunt and raising concerns about her care generally. The nephew claimed to have a Lasting Power of Attorney (LPA) which had been created before the patient lost capacity and could therefore discuss the patient’s treatment. He also demanded access to her medical records. He had a copy of a letter from the patient’s solicitor confirming the LPA. The member wondered whether it would be appropriate to discuss the patient’s care and medical history with him.

MDU advice

Whether the nephew had the authority to access his aunt’s medical records would depend on what type of LPA was in place, the MDU adviser explained. LPAs were introduced under the Mental Capacity Act 2005 and their purpose is to authorise an attorney to make decisions about the donor’s property and finances and/or health and welfare, which could include decisions about healthcare.

If the nephew did not have the appropriate LPA he would not be in a position to consent to or refuse treatment on behalf of his aunt. Nor could he insist on treatment that healthcare professionals felt was not in the best interests of the patient.

The GP checked with the solicitors and discovered that the LPA covered property and finances only, not healthcare decisions. It would not, therefore, have been appropriate to have allowed the nephew to make treatment decisions on behalf of his aunt. And it would only have been appropriate to have disclosed the patient’s medical records if it was thought to have been in her best interests to do so. Although the LPA was not valid for healthcare decisions, the GP and nursing staff, on the advice of the MDU adviser, took into account the views of the friend and nephew to help decide what treatment was in the patient’s best interests.

This page was correct at publication on 01/08/2012. 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.